A LETTER TO THE LORD CHANCELLOR.

MY LORD,

While the recess still affords comparative leisure for the consideration of such
questions as may be brought forward during the approaching Session of
Parliament, permit me respectfully to solicit your attention to a brief notice
of the objections which have been made to the passing of the Infant’s Custody
Bill—a measure which, from its being introduced with the hope of remedying a
defect of power in the courts under your Lordship’s immediate jurisdiction, as
well as from the fact of your acting as Parens Patriæ for the Sovereign of these
realms, would seem entitled to your especial consideration.

From the strong position at first taken by the opponents of this measure, namely,
that the legislature had no power to interfere with “the divine prescriptive
right” of fathers over their children, they have been fairly beaten. It is
proved that the law
page: 2has interfered, and does interfere with the father’s
right of custody, though hitherto only in cases where property has been
concerned; and the question is simply whether there shall be an interference for
the sake of the mother, as well as for the sake of pounds; shillings, and pence;
and, if so, then in what way such interference can be rendered practicable or
advantageous.

So far from doubting the power of the legislature to decide on this, many opposed
the plan introduced last session, because they considered it a half
measure; one which did not go far enough: and even Lord Brougham, (whose great
talents and restless energies were employed, for the hour, in opposing Serjeant
Talfourd’s Bill,) after arguing that women endured no greater injustice in this
respect than in many others which he enumerated, observed that it might be
matter of consideration whether such a provision should not be enacted as would
give power, when the husband was parted from the wife on account of cruelty or
adultery, to transfer the custody of the children entirely from the father
to the mother; or such other person as under the circumstances it might seem
proper to name; thus admitting to the fullest extent the power of the
legislature to interfere; even while giving his most strenuous opposition to the
particular plan of interference at that time proposed.

Indeed, the degree of admission on the part of the legislature, of the “divine
prescriptive right” of a father to the custody of his children, appears to be
page: 3 exceedingly vague; for, although it be ruled
that this right shall extend to the hour of an infant’s birth, and accordingly a
decision to that effect was given in the case of De Manneville, where the babe
was torn from the nursing mother’s breast; yet it appears by another decision,
(Rex
v.
versus
Smith,) that if the child be of or about the age of 14, and
unwilling to return to his father, the law, proceeding once
more on the principle of non‐intervention, refuses to force his
return, and leaves him in the custody he may have chosen for himself.* It also appears, that where property is at
stake, or where heresy in religious, or even political opinions, seems to
justify public interference on behalf of the State, (whose born and natural
subject that infant, as well as its father, is assumed to be,) not only the
right of custody may be interfered with, but it may be totally
annulled: the legislature may claim from the father the infant
member of a society governed by common laws, and acknowledging one common faith,
to be educated in accordance with that faith, and in obedience to those laws;
and may supply the father’s place by a guardian, or guardians, of its own
appointing.

* The King
v.
versus
Penelope Smith, (2 Str. 982,) where a boy, between 13 and 14, was
brought up by a writ of habeas corpus, sued
out by his father, to take him from an aunt who kept him: the Court set the
child at liberty, to go where he thought fit. See also the King
v.
versus
Sir F. Blake Delaval and others, (3 Burr. 1434,) where application was
made for a writ of habeas corpus to bring up
Ann Catley, a girl 18 years of age.

page: 4

To what, then, does even the present admission by law of “the father’s right,” so
hotly raved about by the opponents of the Bill, amount? Simply to this, that
while the child is of such tender years that the custody of the father
must, from the nature of circumstances, be purely nominal;
while he is obliged to provide it with a nurse, or some other substitute for its
banished mother; in short, during that period of its life which God and nature
point out as only fit for female care and tenderness—the right of the
male parent shall be strictly enforced and supported; so
strictly, indeed, that the mother who attempts to retain a child against her
husband’s will is liable to imprisonment for her contumacy.
But, if the child who is the subject of dispute, have attained
an age when if a girl, one rash step may plunge it into irretrievable ruin, and
when if a boy, female guidance is generally of no earthly service, and a
father’s authority becomes especially requisite, then the
undisputed right of custody ceases to have the protection of the legislature,
and the father who, while his child was an infant at the breast, could have
imprisoned its own mother for rebellion against his claim, may find himself
totally unable to withdraw his more mature offspring from the custody of a
distant relation.

If we add to this plain statement the fact that, although property and religious
opinions form grounds of interference, private misconduct does not; and that no
degree of tyranny or brutality, nor
page: 5 the most
gross and open infidelity on the part of the husband, is understood to bar his
power to take his children from his wife, (although the wife be perfectly
irreproachable in all respects;) if, I repeat, we add this strange and appalling
fact, we shall have an exact explanation of the degree in which, and the
circumstances under which, the father’s “divine prescriptive right” is admitted
by the English legislature. Yet this is the confused and anomalous state of
things which the opponents of Serjeant Talfourd’s Bill uphold; this is the
position of the father’s right which appears to them so faultless and perfect,
that it would be sacrilege and folly to alter it, even in the degree of
alteration sought, namely, that where the wife is blameless, the legislature
shall protect her claim to access to her infant children.

It has been asserted, as I have before mentioned, by Lord Brougham and others,
that the admitted hardships and injustice to women in this
instance, is not greater than in others; and that all such instances arise out
of their general position as inferior members of the social and political body.
With every respect for the authority of the Noble Lord who heads this class of
objectors, I must deny either that the particular acts of oppression aimed at by
the Infant’s Custody Bill, are the necessary results of an inferior
position; or that women do suffer equally in any other instance
from want of legal proration. An inferior position, that is, a position subject
to individual authority, does not imply the
page: 6
absence of claim to general protection. To say that a wife should be otherwise
than dutiful and obedient to her husband, or that she should in any way be
independent of him, would be absurd: as Johnson said of a woman’s independence
of public opinion, “If it were possible it would not be just; and if it were
just it would not be possible.” But there is a very wide difference between
being subject to authority and subject to oppression. Take any analogous
instance of inferiority of position; not a servant, for servants are by far the
most independent members of the community at large; but take a soldier, a
sailor, or an apprentice; the situation of captain of a ship, colonel of a
regiment, master of a parish apprentice, being perhaps the nearest approach to
despotic power known in England. In all these instances (for the wisest and best
reasons), authority is stretched to its utmost limits; but
oppression is forbid and guarded against. The sailor on the
high seas, the soldier serving at home or abroad, the forlorn and friendless
apprentice, all know that the strong arm and vigilant eye of the law exist for
them, as much as for those who are set over them. Nothing but a
defect of evidence—nothing but the secrecy which rarely attends crime, can in
these instances prevent acts of injustice, cruelty and oppression, from being
followed by punishment. Is it so with the authority of the father over the
mother of his children? Does the clear evidence of its being a case of cruelty
secure her redress! No. But this injustice is not the result of any inferiority
of social
page: 7 position, implying, of necessity, as
in other cases of inferiority, a certain non‐interference with the authority
exerted over her; it results, on the contrary, from an anomaly in the law; from
a peculiar defect of protection in this single instance, which has not its
parallel in any other feature of the social system; and which habit and
prejudice alone could teach us to mock with the name of justice.

Lord Brougham mentioned, as an equally unjust result of the general position of
women, the fact that a good wife’s property might be at the disposal of a bad
husband: that even her laborious earnings might be squandered by him on selfish
and guilty pleasures, and that there is nothing in the law to
prevent the husband spending his wife’s money on his kept mistress, or in any
other way that pleases him. This is true, but there is nevertheless a balance of
justice in the laws respecting property, for a man cannot leave his wife to
beggary and starvation, however much disposed to do so: he is compelled to
provide for her; he is made answerable for her debts; and, so far from following
in this instance any principle of non‐intervention, the legislature takes upon
itself, in cases where the wrong is clearly on the woman’s side, to assign a
living to the wife, frequently, if not generally, to the amount of one‐third of
the husband’s income. Although, therefore, her inferior position as a social
member, implies that she shall not be considered as possessed of separate
property apart from her husband’s control, her equal claim to legislative
protection is clearly
page: 8 asserted and maintained;
and this is precisely the sort of balance of justice which is
wanting in the matter of Infant Custody.

Again, Lord Brougham argued that, as adultery was by the law of God as great a
crime in man as in woman, and reprobated in both by the law of the land, it was
a gross injustice that it should not be equally punished; which was so far from
being the case, that the woman had the utmost difficulty in obtaining a divorce
from an unfaithful husband, and then it was not such a divorce as would enable
her to marry again; while the husband could, on the contrary, after a verdict in
his favour from the ecclesiastical court, obtain, almost as a matter of
course, a divorce which would enable him to form new ties. Now, there
is certainly much injustice apparent in this; but there is nothing which revolts
the feelings and the understanding, as there is in the law affecting a mother’s
claim. The sin of adultery is the same in man and woman; but on the part of the
woman that sin may be productive of greater social evils, and therefore it
satisfies our ideas of natural justice that she should receive a heavier
punishment. To say nothing of the implied destruction of purity, modesty, of all
the sweet and tender qualifies which are expected from a woman and not from a
man, the woman who is an unfaithful wife may impose on her husband, and her
husband’s family, children who have as little right to his inheritance as to his
affection. There is no limit to the effect of her treachery: it is
not like the man’s, a single sin dying
page: 9 within
itself, but a sin that may give rise to every species of detestable consequence;
the spurious child who is the son of her lover may cheat the son of her husband
of his patrimony, or deprive others of the property who should have rightfully
succeeded to it; and the grossest partialities, the bitterest enmities, may
spring up in a family where doubt has been infused like a slow
poison to corrupt the best affections of the human heart. These are the causes
which make the social punishment more bitter for unfaithful wives than for
unfaithful husbands, and there is no question but that even to women themselves
this inequality of punishment appears, if not justifiable, at least
explicable on these grounds.

The greatest instance of injustice, among those enumerated by Lord Brougham, is
the fact, that where an action for damages is brought by the husband against the
supposed lover of his wife, she can make no defence; that she is
not an acknowledged party to the suit, although hers is the
character at immediate issue; although in fact she is the person
prosecuted; although the sole object of the suit is to prove her guilty. While
the advocate engaged by her husband is employing all the ingenuity of rhetoric
against her; assuming her guilt, and working upon the feelings of the jury by a
description of the husband’s distress, (one representation being perhaps about
as true as the other;) while he is considering himself bound,
according to Lord Brougham’s printed words, “in the spirit of
duty to his client,” not to regard “the animosity, the
sufferings, the torments, or the destruction
page: 10 he may bring upon others;” but to remember only the end for which he
was retained; she is condemned to remain perfectly neuter;
perfectly helpless; excluded, by the principles of our jurisprudence, from all
possibility of defence; dependant for the opinion which may be formed of
her conduct, on the few scattered circumstances in her favour
which may belong to the argument on the opposite side; and of which the advocate
of her husband’s adversary makes just so much use as may serve his
client, who of course, according to the foregoing rule, is his only
object. No wonder that friends who have expected in a trial of this sort to see
some woman’s innocence made “clear as noonday,” are disappointed by the
inexplicable withholding of facts which would have established that innocence
beyond a doubt; or astonished at the want of counter‐accusation against one whom
perhaps they know to have been the worst of husbands. No wonder
that, as Lord Brougham stated to the House of Lords, “the consequence not
unfrequently is, that the character of the woman is sworn away,” and that
instances have been known in which, by collusion between the
husband and a pretended paramour, the fair fame of the wife has been destroyed.
*

* By the Scotch law, this
injustice is obviated; the first process being against the
woman, and the second against her supposed
paramour. By this arrangement, (which exactly reverses the English practice,)
the wife is afforded a fair opportunity of defence; and the temptation afforded
by the hope of vengeance, or heavy damages easily obtained, is done away with.
By the Scotch law also, a woman can obtain a divorce which enable
her to marry again; though in England she cannot.

page: 11

But even this injustice, gross as it is that a woman should be virtually tried
and virtually condemned, while she is in fact deprived of the power of rebutting
the slanders brought against her, even this injustice will not be
held by women to equal that which they endure with respect to their children. A
woman may bear cheerfully the poverty which anomalies in the laws of property
may entail upon her; and she may struggle patiently through such an unjust
ordeal of shame as Lord Brougham described; but against the inflicted and
unmerited loss of her children she cannot bear up; that she has not
deserved that blow, only adds to its bitterness: it is the master
feeling of her life; the strong root of all the affections of her heart; and, in
spite of the enumeration of every real or fancied grievance incidental to her
position, she will still hold that injustice to stand foremost,
distinct, and paramount above them all. She is not left to the
exercise of despotic power on the part of her husband as regards property, for
the law compels him to provide for her; she is not left to his despotic power in
the matter of personal violence and cruelty, for she can obtain a
divorce, though it be only a divorce â mensâ et
thoro. It is in the single point of her children that
she is entirely without remedy: it is in the single point of her
children that her innocence or her ill‐usage avail nothing: how then can
this be rated with instances in which it is expressly
understood that she will be protected if she can prove herself
blameless and ill‐used! I do not say that, in spite of this understand‐
page: 12 ing, there may not be very many cases of great
injustice and suffering in these other instances, which the law cannot or does
not touch; but I assert that it is not intended or
admitted that women shall be without remedy in these cases: on
the contrary, there is an attempt at protection; and there is
no attempt at protection in such cases as would come under the
Infant Custody Bill.

The principal objections which have been urged against establishing such a power
of protection as would enable separated mothers to appeal successfully to courts
of law, are as follows:—

I. That it would encourage and increase separations between married couples, by
removing the great check which the knowledge of the loss of her children at
present imposes on the wife.

II. That it would be impossible to carry such a measure into execution from the
difficulty the courts would have in deciding domestic quarrels, and the
determined resistance which would be made by fathers to legal interference in
such matters.

III. That the result of access (if it could be enforced against the will of the
father,) would probably, if not certainly, be the abduction of the children,
whom the mother would thus have an opportunity of carrying away.

IV. That as the decisions would be grounded on affidavits made by the suffering
party, it would afford a temptation to perjury; and that a woman who was
guilty, though not convicted of misconduct, might
obtain access by these affidavits.

page: 13

V. That it will render reconciliations less probable.

VI. That it will disturb the education of the children under the father’s
exclusive care.

There are other, more technical objections, such as the number of judges who were
to have this power of decision; which Lord Lyndhurst met, by
stating it to be his intention to confine the power to the three Equity Judges.
These I shall pass over in silence, as being objections merely to the
form of the measure of protection; and proceed to review in
order those which are against the spirit of such a measure.

I. The first objection, namely, that ALLOWING ACCESS WILL
ENCOURAGE SEPARATIONS, by removing the check which the knowledge of
the loss of her children has hitherto imposed on the wife, is easily and
decisively answered. That check cannot be said to be removed which
never existed; and it is certain that so far from women in general being aware,
that by separating themselves from their husbands they also eternally separated
themselves from their children; the general impression was (not only among
women, but among two‐thirds of those who are now called to legislate upon this
question), that until seven years of age the mother could claim the
sole custody of her infant, and that after that age circumstances would regulate
her intercourse with it. Till the painful disclosures consequent on the
discussion of this Bill, were made; it never was publicly known or understood
that the father had a right to deprive his wife of her infant
page: 14 children at any moment, and for any cause; it never
was publicly known or understood, that infidelity and brutality on the part of
the husband, and blamelessness on the part of the wife, made no difference in
the decisions of courts of justice: it never was publicly known or understood,
that in this free country, a man could take his innocent legitimate child from
his wife, and give it to the woman with whom he was living, and that the English
law, the law which boasts “a remedy for every wrong,”—the law of the country
which piques itself on the protection of the oppressed—gave that mother no
redress, but left her child in the custody of its father’s mistress. * Women have hitherto imagined (naturally
enough), that if they could prove they had been faithful wives and careful
mothers; if they could prove that the fault of separation was not theirs; if
they could prove that it was merely from vengeance, from interest, or to gratify
the caprice of some unhallowed object of attachment, that their children were
taken away, the strong arm of the law would interfere to protect them. This was
believed in error and in ignorance; but that it was believed, is
sufficient reply to those who talk of the law as it exists having been a check
against separations. The very last case which was decided, * was, under this

* Vide the case of Skinner
v.
versus
Skinner, (9 Moore. 78,) which will be hereafter more fully
referred to in these pages.

* Greenhill
v.
versus
Greenhill, where the husband was proved to be living with a woman
of the town, and the wife irreproachable. This case will also be referred to
hereafter.

page: 15 belief, carried by the
appealing mother from Judge’s Chambers to the Court of King’s Bench, and from
the Court of King’s Bench to the Court of Chancery, still imagining that
somewhere the power to protect must exist. She knew nothing of
the supposed “check” which was to be held in
terrorem over her, to compel her to submit to the coarse
infidelities of her husband, or to part for ever from her infant children; she
knew nothing of the operation of the law which aided the oppressor to tyrannise,
punishing the innocent and letting the guilty go free. Simply imagining that her
own blamelessness and affection for her children, (to whom she had
been acting a mother’s holy part, while their father was living with a wanton,)
would suffice to establish her claim to protection, she appealed to the English
law; and appealed in vain.

The same degree of very natural ignorance has been shewn in a multitude of other
cases; proving the same impression (that the law would protect them,) to exist
in the minds of most women conscious of their own innocence; nor can it be
affirmed that even to members of the legal profession it appeared clear that
this “check to separations” existed unconditionally; since whatever
encouragement gentlemen of the long robe may be supposed to give to litigation,
it will hardly be asserted that they brought forward and argued these several
cases in the different courts, without believing that the particular
circumstances adduced might obtain a decision in favour of their
page: 16 clients. The doubt appears to have been
where the protecting power existed, not whether it had any
existence at all: and if we may judge by the record of published cases, this
doubt seems to have obtained with judges and barristers, as well as with mothers
and wives. Lord Wynford, (one of the bitterest opponents of Serjeant Talfourd’s
Bill,) when as Chief Justice Best, he decided the case of Skinner
v.
versus
Skinner, referred to the Court of Chancery as having a power superior
to the Court of King’s Bench, and affirmed that the Lord Chancellor might,
accordingly, under certain circumstances, control the right of a father to the
custody of his child, leaving the doubt merely as to what
circumstances would justify such control. This appears to have been the general
opinion; and we are to presume that when women, after failing in their appeal to
the one court, were encouraged to proceed with a fresh suit in the other, it was
with the honest expectation, on the part of their legal advisers, that there was
at least a possibility of eventual success. That these expectations
were frustrated, in no way touches the present portion of my argument, which
merely goes to prove that a general error of belief existed as to the power of
the courts (one or other of them) to protect separated mothers; that women did
not know or admit that the possession of their children, or intercourse with
them, depended solely on their husband’s caprice; that lawyers did not know or
admit such to be the case, without exception of
page: 17
circumstances; and that consequently the “check” so loudly cried up by the
opponents of the Bill never could have existed, and never did exist.

Whether that species of divorce commonly called “separation by mutual consent”
should be permitted or countenanced by the English law, is another question; but
being permitted, the “checks” (and they are many) which combine to make such a
divorce undesirable, remain precisely as they did before the question of Infant
Custody was ever touched upon or explained.

Those checks are already all on the woman’s side; and the principal
among them was, is, and always will be, the loss of reputation which this step
entails; for it is certain, that let the husband be ever so much to blame, an
implied doubt as to the circumstances, and the contrasting accounts of parties
mutually opposed, leave a slur on the woman’s character from which she never
stands thoroughly clear. Her acquaintance among her own sex, with the exception
of a few of the more noble‐hearted, draw off from her; for it is as much the
nature of women as of deer, to turn upon the wounded one of their herd. Her
enemies avenge past offences, under pretence of her doubtful position: every one
who has a stone, which waited only the hour of helplessness to be flung, casts
it with impunity; and let her struggle as she may against temptation; let her
endeavour as she will to propitiate the more indulgent of her self‐constituted
judges; let her do her best, in a situation at once the most helpless and the
most responsible a
page: 18 woman can fill; so far from
“’scaping calumny,” she shall endure so much of it, that it would seem as if all
other women proved the degree and strength of their own virtue by the bitterness
with which they assailed and doubted hers. It is this which has
been the great “check” to separations—and long may even the injustice of
society, the malice of some women, the real principle of others, and the
timidity of all in matters of reputation, exist to so beneficial an
effect. There is no doubt or dispute as to the propriety, nay, the necessity, of
discouraging and discountenancing separations between man and wife; but there is
no need to discourage them by false arguments in support of oppression and
injustice.

And before that portion of the subject be closed, which relates to the supposed
checks against separation, it may be proper to remark, first, that it does not
follow, because a separation takes place, that it was voluntary on
the woman’s part; and, secondly, that where it is voluntary, it does not
follow that she is in fault. Where it is not voluntary;
where the husband, to use a Scriptural phrase, “puts her away,” the wife
certainly may have deserved it; in all probability she
has deserved it. I am not declaiming against a class, or
supposing that because the man is the stronger party he is necessarily a tyrant;
I do believe that men (and in women also) the general rule is for good, and the
exception for evil; and therefore I admit, that in this sort of compulsory
parting, the strong presumption is, that the woman has deserved her
page: 19 fate. But it is possible that she may
not have deserved it; it is possible (as recorded cases prove)
that she may have been the victim of some lawless attachment formed by her
husband, and of every species of brutality and ill‐usage, ending in desertion.
Shall such a woman have no redress, because it is also true, in other cases,
that generous and excellent men have found their honest attachment repaid by
perfidy, and have been compelled to put their wives away?

On the other hand, where the separation is voluntary on the part of
the woman, perhaps determined by her in defiance of her husband’s desire that
she should remain under his roof, though it is possible also in
this case that the woman may be unworthy, it is less probable.
Women guilty of misconduct are not, generally speaking, the most eager or
willing to part from their husbands. There is nothing so cowardly or so cautious
as vice. It is the woman who is or imagines herself aggrieved; who is stung by
the frenzy of jealousy, or bowed under the violence of tyranny, who comes to
that rashest of all rash conclusions, “I will bear this no longer;” who insists
on a separation, and quits her husband’s house.

It is the woman who is conscious of her own innocence; who fancies she will
obtain the sympathy of others because she has suffered, and that she will still
preserve the respect of “the world;” who leaves the ark of her home for the
waste of its waters. A good woman may take this step and think herself
justified, just as a bad woman may dread taking it, and prefer
page: 20 remaining, like a coiled snake, basking in the warmth
and protection afforded her by the shelter of her husband’s roof, and the
confidence of his trust, and happy in being able by that means to hush the
world’s slanders into a whisper so low that few dare echo it; a whisper so low
that the husband from whom she is not “separated” shall never hear it There are
checks of all sorts against separation: the woman who tries it, only lengthens a
chain she can not break, and condemns herself to endure alone and
in partial disgrace, the evils of a lot whose unhappiness was before cheered by
the esteem of friends and the welcome of society. But to declare that
henceforward it shall be understood to include a bitterer suffering; that a
woman shall not dare under any, the most grievous circumstances, to part from
her husband, except on penalty of losing her children; to say that even her
involuntary separation from him in cases of his desertion for the sake of a
mistress shall be equally visited on her by the loss of her
children, is not to create a chance of making women better, but to afford a
certainty of making men worse. The checks upon women are very
great: eternal disgrace for infidelity, partial disgrace for that which may not
even be their choice, namely, the separation from their husbands. But where are
the checks upon men? Who visits upon them the grossest
inconstancy?—is it not rather a jest in society! There is one check possible,
and it would be found precisely in such a Measure of Protection as is now
page: 21 under consideration; precisely in such a
degree of power as I trust to see ere long established in your Lordship’s court.
So far from being a check the less against separations, it would
create one check more, and that on the side where hitherto there
has been no check at all.

I have taken this objection somewhat at length, because it is the most plausible
that has been brought forward; it was one also mainly relied on by Sir Edward
Sagden, whose opinion justly carries much weight with it; but who reasoned in
this instance as a lawyer, from his own knowledge of the law,
without considering that the check he presumed to exist depended not on the
state of the law, but on the woman’s knowledge of
the state of the law; that women in general are, from their confined education
in these respects, especially ignorant of the laws under which they live; and
that he would not probably have found, before the public discussion of this
subject, one woman in a hundred who did not believe particular
circumstances would enable the Court of Chancery to decide her claim to the
custody of her infant children.

II. The next great objection urged is, that granting the justice and expediency
of such control and power of protection; granting that Serjeant Talfourd’s Bill,
or a similar measure, were passed, IT WOULD BE FOUND
IMPRACTICABLE IN ITS OPERATION for several reasons; first, because
the difficulty of deciding in domestic quarrels, and between conflicting
state‐
page: 22 ments, would be so great as almost
to amount to an impossibility: secondly, because the decision would be useless,
on account of the determined resistance which would be made by the father to any
legal interference with his right of custody, and which would lead to men rather
submitting to be sent to prison for contempt of court than permitting their
separated wives to have access to their children. This is another very favourite
argument with the opponents of the Bill; and yet there is a very simple and
decided answer to it; namely, that such control has already been
exerted on other accounts; that litigation has taken place on the
subject; and that neither the decisions, nor the carrying those decisions into
effect, were found to be impracticable. Why should it be more difficult to
interfere with the children of Mr. Smith or Mr. Tomkins, than with the children
of Mr. Wellesley and Mr. Shelley? * Why is the
wrath and resistance of these hypothetical fathers to be so much more terrible
than in the real cases on record in our courts of law? It would at all times be
a weak and poor argument against establishing a law, to say that it will be
difficult to carry it into operation; and would apply with nearly equal force to
most laws; daily difficulties must and do arise in carrying the

* See also less
celebrated cases of interference. Whitfield
v.
versus
Hales (12 Vesey. 492,) where the Lord Chancellor appointed a
guardian for the infants in lieu of their
own father; the case of Blisset (Lofft. 748) where the like was done, on the
ground that the father’s power is subordinate to the authority of the state;
and many others.

page: 23 greater part of
them into effect. But the law‐giver has a sacred duty to perform towards the
community, and if a law be just and necessary, he has no choice but
to establish it; his office is merely to provide such securities for its
enforcement as the imperfection of human means will permit. We have no reason to
expect greater difficulty for the future, than has been found in the past; in
the few cases recorded, the fathers have not submitted to be
imprisoned for contempt rather than obey; and the court has not
doubted its ability to decide, though the decisions were made of course on the
same species of evidence as would be given under this Bill, namely, the
testimony of the family and friends of the parties at war.

Nothing can shew more strongly the degree to which prejudice warps and perverts
the judgment of the most intelligent minds, than the very contrasting arguments
of the objectors to this Bill. No sooner has one objector shewn, in the most
eloquent and forcible language, that the result of the Bill will be that our
“prisons will be crammed” with fathers lying in contempt, than another starts
up, and with indignant vehemence declaims against the folly of altering a law
merely to meet “one or two solitary instances of oppression.” The first objector
adds, that the mother will never obtain access: the second takes the access for
granted, and the abduction of the children as the certain consequence. Both
arguing against the Bill, but on different grounds, uphold, even in their very
opposition, one of these two opinions: either that the cases of oppression
are rare and
page: 24 solitary
instances, or, in other words, that the majority of men have already (guided by
principles of natural justice) agreed to act as if women had some
claim to access; or, that there are a multitude of grievous cases of
injustice which would be brought forward by the operation of the
Bill. Serjeant Talfourd was taunted in the House of Commons with only producing
half a dozen cases in all, to shew the necessity of a change in the law. If the
taunt be founded on truth, then the evils described so graphically will not
ensue: by the decision of a few solitary cases our prisons will not
be crammed with prisoners for contempt; the whole order of society will
not be subverted; the result will not be “frightful to
contemplate.” “In nineteen out of twenty cases,” say the objectors, “access is
already allowed.” Why, then, the twentieth case is all that threatens danger;
the small minority who have refused to consider with the great majority that a
mother should be allowed to see her child, alone come under the provisions of
the Bill: and do not let us forget that this small minority, in our recorded
cases, was composed of men, base, ferocious, and unjust; men, who to force a
testamentary disposition, to gratify a mistress, or to poison the arrows of
their vengeance against a helpless woman, claimed, like Shylock, the pound of
flesh next the heart of their victim. It was not a minority of
justly incensed husbands refusing an undeserved boon to offending wives; it was
a minority of fierce men—adulterers—men whom the great laws of society could not
touch, whom the opinions of the majority
page: 25 could
not influence; but who were, nevertheless, a pest to that society, an object of
detestation and horror to that majority, and proper objects for such control as
the Bill of Custody would give.

But whether the instances
.
of injustice which this Bill is intended to remedy be few or many, one
thing is very certain, namely, that after the passing of this measure the number
of those instances will be diminished. It was suggested in your Lordship’s brief
notice of the Bill, when introduced to the House of Lords by Lord Lyndhurst,
that if the husband were to feel there was a Power of Control
residing somewhere, he would probably not compel the wife to have recourse to an
application for its exercise in her behalf. In that sentence lies the secret of
more than half the benefit which such a measure would confer upon society.
The knowledge of the existence of the law would do more than
the exercise of the law itself. A man who feels that nothing opposes between his
angry will and the object of his anger, will act rashly, suddenly, and probably
with great injustice; for it is a grievous temptation to the best of men to have
such an uncurbed power: but the man who knows that he is responsible for the
manner and measure of his vengeance, will pause; he will consider within himself
whether his wrongs will be judged by those to whom he is responsible, as
he judges them; and this very effort to place himself as it
were in the mind of another, will produce a more dispassionate view of the
subject. Again; a man who knows his conduct to be base, tyrannical,
and unjust, will not
page: 26 voluntarily expose it to
public censure, but will rather, through the mediation of friends, make an
arrangement with his wife respecting their mutual offspring. And here I cannot
help expressing my astonishment at the tone adopted by some of those who desire
to prevent the measure being carried. Any one would suppose, from the manner and
substance of their arguments, that the Bill ran thus:—“And be it enacted that
from henceforth all wives separated from their husbands shall, on application to
a judge, obtain an order of access to their children, in case the husband shall
be opposed to such access; whatever may be the motive of his
opposition.” In lieu of this, what does the Bill, in fact, propose? A
power of appeal, by tedious forms of law, on the part of such women as are
likely to be able to prove their separation from their children to
be a gross injustice. Will women who know that separation to be a just
infliction, venture on such an appeal? Can it be believed that a woman will
volunteer affording her husband an opportunity of proving her misconduct (which
may still remain unknown), by forcing him into the retaliation consequent on
such an appeal? Is it probable—is it natural, to expect that a woman who is
conscious that had fair justice been done, she might have been divorced, will so
far presume on her partial escape, as to expose herself to a fresh ordeal of
scrutiny and accusation? Are the cases on record during these past years, when
women believed they had the power of appeal, cases where even a
doubt or slur lay on the woman’s character? Were
page: 27 they not all, on the contrary, cases of absolute and terrible
injustice and cruelty inflicted on innocent wives and devoted mothers? Does not
the fact of their being so, afford a strong presumption that, among separated
women, none appealed who did not feel secure in their own blamelessness, and
confident—too confident of justice being done them? Does it not
also afford a like presumption that future appeals would only be made on the
same grounds, since no greater power of appeal can hereafter be given, than
women have imagined they already possessed? I think the past, in
such a case, may be taken as a fair sample of the future. No party, however
bitterly they might feel towards another, would engage in a tedious and
expensive struggle, knowing the probable result to be failure and
disgrace. The bad man will not try it, against an injured wife, when he
learns there is a controlling power to be exercised; the bad woman
will not try it, against a justly severe husband, only to incur additional
mortification and shame. And there are others, besides the husband and wife,
over whom the knowledge of the existence of the law would exercise a most
salutary influence. I allude to the family relations on both sides. It is well
known that feuds frequently arise between mothers‐in‐law and their son’s wives,
sisters‐ln‐law and their brother’s brides; and this for obvious reasons, though
it may at first sight appear strange and unnatural. The son and brother goes out
into the world, and selects a wife to please himself; he brings this
stranger (who is, and ex‐
page: 28
pects to be, all in all to him,) into the bosom of his own family: persons
utterly dissimilar, perhaps, in every thought and feeling, educated in opposite
opinions and prejudices, are thus suddenly forced into companionship and
intimacy; a natural and affectionate jealousy of the husband, son, and brother,
who is the common link between them, diminishes the small portion of indulgence
which, under such circumstances, each might be willing to accord to the other;
they become mutually disagreeable; the bride wonders how her “beloved Henry”
could have sprung up among such odious people; the family marvel at his rashness
in marrying so unamiable a person. All this dissatisfaction is increased if the
bride be a wit, a beauty, a fortune, (though that is generally the
safest quality she can possess), or in any way entitled to give herself a few of
those pretty airs so common in a bridegroom’s “idol.” Before time, and the good
sense of some one of the parties concerned, has smoothed matters down, the bride
has probably complained to her family of the treatment she receives
from her new relatives; and the husband, on his part, has become aware that his
wife is by no means viewed by his connections with the same partial eyes as his
own. The general effect is to draw the husband rather from his own family into
his wife’s for a time, partly because a woman being more bound to her own home
than a man, she still seeks and prefers the society of her own
relations; and partly became he is averse to see one whom he
admires and tenderly loves, unwel‐
page: 29 come, where
he especially intended and expected her to be preferred. All this does very well
till (if ever) a serious quarrel takes place between the husband and wife. In
that quarrel the two families instantly enrol themselves with a bitterness of
animosity which no one who has not witnessed it would believe, and which
frequently far outdoes the feelings of resentment burning in the hearts of the
two “principals:” the husband is taunted into frenzy; the wife is encouraged to
defiance; the smallest concession on his part is treated by his family as folly,
weakness, dishonourable submission. The wife finds she has to struggle not
against one angry man, but against a regiment of angry men and
women, to whom perhaps the only real offence of her life has been “that having
eyes he chose her,” and that she, (being young and pretty, and he much in love,)
exercised at one time more influence over him than father, mother, brother, or
sister, “For, for this cause shall a man leave father and mother, and cleave
unto his wife.”

Now, that influence is weakened, and the case is altered; the arrears of many
years have to be paid up; old heart‐burnings and jealousies are to find vent;
the opportunity of humbling and tormenting is not to be lost. Bewildered by an
enmity which she considers causeless or disproportioned to her offence, the wife
becomes doubly exasperated against her husband for thus abandoning her to the
united efforts of those friendly foes. She considers there is a species of
cowardice in thus backing his
page: 30 own anger by the
petty torture of their assistance. Scorn and bitterness mingle with her
indignation and previous sense of injustice; his mind receives the re‐action of
these sentiments, and the busy whispers, or open accusations of the members of
his family, put the finishing stroke to the quarrel. Nothing can follow but “war
to the knife;” the wife may, and probably does, struggle against this increasing
influence, but in vain: the husband may, now and then, feel some relentings, but
equally in vain; husband and wife are parted; he is once more the
son and brother, and she the stranger, whose presence
was so little desired. Trivial circumstances may add to the anxiety of the
husband’s relatives to produce this end; sometimes a residence with him would be
advantageous; sometimes a fortune is to be shared; sometimes it is the direct
interest of family connections to obtain possession of, and influence over, the
heir to the family estates. Every thing adds to the wife’s misery, and to her
exasperation: if as in the last case, there are children, and those children are
wrested from her to be placed with the husband’s relatives, of course the
exasperation is increased tenfold. If, as does frequently happen, the family
exert themselves to prevent even communication between her and her children, it
is increased a hundred‐fold. Individual examples are thought to be unfair, are
thought to be tedious; and a woman’s story of suffering is never above
half known, for the very fact of the publicity of her wrongs is
counted to her for disgrace; but could even a portion of the anecdotes of
strange and
page: 31 morbid spite, of deliberate
persecution, aye, even of personal violence on the part of husband’s relations
to a wife at war with him, be publicly known and related, it would be admitted,
that the additional “check” is required, not for the wife (who, as
in one of the recorded cases, may be married at seventeen, deserted for a
mistress at five‐and‐twenty, and then told that though her marriage is
indissoluble, the offspring of that marriage are no longer her’s,)
but for the husband, whose bad passions are fanned to fury by those who surround
him; and for those whose desire and whose interest it is, to keep alive the
flame. The most material benefit that could be rendered by the Bill
.
would be the check given, by the possibility of an exposure of the
real motives of these “assistants” in a quarrel, and the hazard
of exposing themselves in vain, as far as injury to the woman was
concerned. Husband’s relations would be infinitely more loth to interfere, and
more slow of advising extreme measures, if the fearful impunity with which all
tyranny may now be exercised, were done away with; and thus, by non‐interference
on their part, or perhaps an interference for good instead of evil; an
interference, (for the husband’s credit’s sake,) to obtain a more decent
termination of the quarrel; a still further reduction of the number of instances
in which appeals might be made, would be the result of that knowledge of the
existence of a Power of Control alluded to by your Lordship.

III. The third objection made, is, that THIS EN‐
page: 32 FORCED ACCESS WOULD LEAD TO THE ABDUCTION OF THE
CHILDREN. “What,” said Lord Brougham, “is to be the security, that
the wife will not run away with the children?
”
How is this to be guarded against? To what place, and under what
circumstances, are the visits of the mother to be made? Is an officer of the
court to be sent with the mother, to be present at these
interviews, and prevent evil consequences, or what is to be done to avert either
abuse of the husband, or abduction of the child?

As usual, the answer to the objection is to be found in the very speech of the
objector: for, in contradicting Lord Lyndhurst as to the exactness of his
statement respecting the power exerted by the Courts of Chancery, Lord Brougham
explained that, when the court had that guardianship of children and there was
profligacy on the part of the father, “the Judge would take
care that the mother should have sufficient opportunities of seeing
them.” So then, it appears the fear of abduction does not exist in
certain instances; that the Court of Chancery, when it has the wardenship of
infants, takes care that the mother shall have sufficient
opportunities of seeing them. What should hinder the same precautions which are
adopted by the court in these instances (if indeed any precautions are thought
necessary) from being adopted also in these imaginary cases of appeal? How comes
it that the court can safely allow the wives of ill‐conducted husbands to see
their children under one set of circumstances, and not under another? Why
page: 33 should this power of permission exist only for
the mothers whose children are possessed of property enough to make them wards
of chancery?

Nor is it otherwise than a libel upon women, and a libel upon common sense, to
assert that mothers will be more likely to abduct their children
when they are permitted to see and hold communication with them than when they
are excluded from such intercourse. The temptation to abduct the children, lies
with the woman who is driven to desperation by her inability to see or gain
intelligence of them; who is writhing under the infliction of a compulsory
separation from them, which the law cannot relieve; who knows she has but
that one alternative. Obvious and most serious reflections must
oppose the temptation in all cases; for few women have any separate property on
which they could maintain their children, or secure them
on
an
after independence; consequently they must be reluctant to injure the
future prospects of the infant: nor can a woman, in her conscience, view such a
step in any better light than as a retaliation of wrong for wrong. It consists
with my personal knowledge, that in one case where the abduction of the children
would have been attended with every facility, the mother was withheld from
attempting it by these considerations, and I have no doubt the same feelings
would influence many women against such a step, even with a consciousness of the
present state of the law. Why then should it be supposed that the chances of
abduction would be increased by lessening the
page: 34
temptations which lead to it? by increasing the protection afforded in cases of
injustice? by making it possible to obtain by fair and equitable means what
hitherto could only be achieved by stratagem or violence? by creating a power of
control which would henceforth make it unnecessary, as well as rash
and imprudent, for mothers to resort to such methods for securing intercourse
with their children? I believe the exact contrary of what is thus boldly
asserted. I believe that not only the temptation to abduct the infant would be
in a great measure obviated by such a measure; but that the just authority of
the husband could by these means be still exerted ever a separated wife. As it
would be her interest, if she really cared for her children, to watch her
conduct, on the proof of the blamelessness of which her claim to access was to
depend; so it would be her interest to make any personal sacrifice, to comply
with any expressed desire on the part of the father of those children. What was
the state of facts in a case already referred to—the case of Mrs. Greenhill? As
long as that young wife imagined her appeal could be favorably answered in the
courts; as long as she believed her access to, or remaining with her children,
was a thing subject to legal control, and conditional on circumstances, she made
every offer which anxiety could suggest: she expressed herself willing to obey
any injunctions, to submit to any restrictions, to live in any part of England
her husband might prescribe, or to remain with her own
page: 35 mother, at whose house he should visit the children
as often as he pleased. It was not until in Judge’s Chambers, in the Court of
King’s Bench, and in the Court of Chancery, the claim of the innocent party had
been rejected, and the right of the guilty party confirmed: it was not until her
husband had obtained a writ of attachment, or sentence of imprisonment for
contempt of court against her; that bewildered by the palpable
injustice of those decisions, and instigated by the energy of despair, she fled
from England, taking her children with her. Can any one doubt that had the power
of control existed, as it was supposed to exist, the abduction would not have
taken place? Can any one, who is not blinded by obstinacy and prejudice, refuse
to believe that the probable results of a more favorable and just
decision, under such a power of control, would have been the avoidance of a
great public scandal; the submission of the separated mother to a partial
authority on the part of the father of her children; the residence of those
children among their natural relatives in their own country; and perhaps (for
such connections as the one formed by Mr. Greenhill are not very lasting), the
eventual reconciliation of husband and wife, and a mutual guardianship of their
mutual offspring. Was not, in short, the abduction of those children caused by
the want of that very power which it is urged will give rise to
abductions? and is it not equally unfair and absurd to persist in inventing
results for imagi‐
page: 36 nary cases, which the
results in real instances exactly contradict?

Moreover, there is no sort of reason why security should not be given, on the
part of the woman, that no attempt should be made to remove the children from
the custody in which they might be placed. It is the custom in the higher ranks
of society, when separation takes place, for relatives to become securities
against the husband’s future liability for the wife’s debts, after a proper
provision has been assigned her; and it is to be presumed that some sort of
control is exerted on the part of these relatives, and that the wife considers
herself bound in honor to them, not to incur debts for which they have thus
become answerable: why should not some plan of this sort be adopted also with
regard to the children, and the wife be bound by her securities in the same way?
We have no right to assume that this check would be insufficient to prevent a
mother from abducting her child: the Bill is intended to benefit virtuous wives
suffering under unjust exclusion, and such women are not to be expected to shew
such an utter dereliction of moral principle, as to make it impossible to bind
them in this respect. One of the questions of the court might be, “What security
can you give, that access, if permitted, will not be abused by an attempt to
carry off the children?” Though, as I have before said, if the court can
now make the mother’s access to children in its wardenship safe
and easy, it is natural to suppose that it
page: 37
could, with equal facility and safety, make arrangements for the same liberty,
under the new power of protection, if once established.

IV. But, say the objectors, we do not admit that virtuous and ill‐used wives
alone will claim and obtain access: on the contrary, we believe that this Bill
will create “DIRECT TEMPTATION AND OPPORTUNITIES FOR
PERJURY;” the necessary affidavits will be perfectly frightful, and
that by means of such affidavits women of the worst conduct, but who have not
been publicly convicted of sin, will be enabled to appeal, and perhaps to
succeed in their appeal, for access to their children.

This objection is, at first sight, the most difficult of all to get over; because
no one can absolutely contradict it: no one can deny but that perjury may occur;
that there is a possibility of its occurring; and a bare
possibility of its succeeding. But why is this argument applied only to the
legal appeal of a separated mother, when, if it has any force, it equally
applies to all legal appeals; to every case that can be brought
before a legal tribunal? It is possible that the concurrent
testimony of several perjured witnesses may establish a forged will; it is
possible that several persons might falsely swear to an alibi
in a case of burglary, and so acquit the housebreaker; it is
possible, (as Lord Brougham observed,) that a woman’s character
may be falsely sworn away by collusion between her husband and supposed
paramour; it is possible that a man shall swear, and get others
page: 38 to swear, that a certain sum of money is owing
to him which never was due, in order to cause the supposed debtor to be cast
into prison. It is possible that the heirs of an eccentric man
shall falsely swear, and get his servants to swear, that he is insane; and
invent instances of his insanity. All these things are possible;
and in rare instances it is to be feared that all these things have been done;
(though not even in those rare instances always with success:) but because they
are possible, are men to desist from appeals to legal
tribunals? or are those who are really injured to be prevented from appealing,
lest their case be founded on falsehood? Is the distribution of human justice to
be at an end, because the judges are not like the all‐seeing God, (“to whom all
hearts be open,”) but are obliged to make the best use they can of
imperfect means towards the discovery of truth, and
establishing of rights? How palpably absurd would it seem if a man were to
argue, that as he knew for a certainty that a thief had been
acquitted, (either by a flaw in the indictment, a defect of legal proof, or the
false swearing of his companions,) he was of opinion that it would be better,
safer, and more according to justice, that all persons accused of theft should
be hung without trial, to avoid the future possibility of one who was guilty
escaping that punishment? Yet this is precisely the same argument, in a
different form, which is gravely listened to and considered, when it is affirmed
that it would be better that all women should suffer without re‐
page: 39 dress, than run the chance of a bad woman
obtaining access by perjury. The expectation of this great and difficult sin
being committed, is not borne out by experience of the past; the recorded cases
of appeal having been those of women against whom their husbands advanced no
shadow of accusation, and where consequently there was no necessity or chance of
false swearing, the wives being precisely what they represented themselves to
be;
viz.
videlicet
innocent and unjustly oppressed. And as I have already shewn, the
experience of
the
past is a better guide for the future, than lawyers will allow,
because, though adverse decisions were given at intervals, all women still
believed they had power to appeal, and continued in ignorance of the
grounds on which those decisions were made.

Successful perjury is by no means a common thing, especially where it is
necessary to bribe other persons also to perjure themselves; there is generally
some discrepancy or contradiction in statements made with the cowardice or
desperation of vice, which betrays the party engaged in such an attempt; or some
key‐stone of evidence is forgotten, for want of which the whole edifice of
falsehood crumbles into ruin. But, successful or unsuccessful, there is no
greater chance of perjury in the cases which would come under
the Infant Custody Bill than in any other disputed legal matter (unless, indeed,
we are called upon to believe that utter recklessness, irreligion, and false
swearing, abound more among educated women than any other class of her Majesty’s
subjects). Consequently the
page: 40 same means, neither
more nor less, which are used to discover and decide the truth in other cases,
are at the option of the Judge who is called upon to award or withhold on
certain grounds a mother’s right of access to her children.

It has, I know, been the opinion of some, that the most simple and efficient
guard against the possibility of an unworthy woman obtaining, by dint of
perjury, the boon intended for the innocent, would be to confine the relief
proposed by the new measure of protection, to such women as have been able to
obtain a verdict of divorce against their husbands for adultery or cruelty in
the Ecclesiastical Courts; and certainly it would be well if such women were
entitled as a matter of course to that relief which in other cases
should be a matter of consideration. But to bar all separated wives
from relief who have not obtained this divorce â mensâ
et thoro, would be to deny justice to the great majority of women
in that position. Among the five recorded cases quoted by Serjeant Talfourd, as
proofs of the gross hardship and injustice of the law, there was only
one woman who had divorced her husband; the rest were separated
“by mutual consent,” as it is termed, or had been deserted. The difficulties
which are presumed, and asserted to exist, when the husband desires to give
legal proof of the infidelity of the wife, are obviously increased
a hundred‐fold, when it is the wife who desires to give legal proof of the
infidelity of the husband; for whereas the misconduct of the wife
is acted in her own
page: 41 home, under the watchful
notice of her own household, and witnesses may be found to prove her guilty (if
she be guilty) under the very roof that shelters her; the
misconduct of the husband may be perfectly free from observation, and impossible
to obtain evidence of; a woman cannot dog or trace her husband’s footsteps when
he leaves his home, nor can she (even did the torments of jealously tempt her to
such baseness) send menials to watch the haunts of pleasure where she presumes
he may be; or obtain proof (without the greatest difficulty) from those who
surround the partner of his guilt. The wife of a truly honorable and anxious
husband can hardly have a lover, but sooner or later the husband shall be made
aware of her crime, and put in possession of proofs which will avail as legal
evidence; but the husband himself may keep a mistress, or indulge in coarser
inconstancy, and the wife (though morally certain of the fact) be yet utterly
unable to produce witnesses to prove it. In cases of cruelty, the
chances are still less in favour of the woman obtaining the divorce sought by
her; for the law, to guard against the reception of frivolous and vexatious
complaints, requires very strong evidence of the husband’s cruelty, and that it
should be cruelty such as may be supposed “to endanger life or limb;” which (as
few men offer personal violence to their wives in the presence of by‐standers,
and her own single evidence is of no avail,) generally fails of absolute proof.
Add to this the absurd law of condonation, which takes
page: 42 away from the woman who has forgiven acts of cruelty
and returned home, the power of complaining of them afterwards; and there is
scarcely a chance of such divorce left; for I suppose nine women in ten,
struggling against their resentment or terror of a violent husband for the sake
of their children and reputation, do, at the entreaty of the husband, or by the
advice of friends, return to their homes after complaints of cruelty, and so
condone the past. On these accounts it would be very hard and
very unfair to confine relief to those who had been enabled, by concurrent
circumstances, to obtain a legal verdict against their husbands.

And here I cannot help remarking, that the virtuous horror and indignation
expressed at the bare possibility of an unworthy and ill conducted
woman obtaining access to her children, forms rather a curious
contrast to the eager bitterness with which the general right is upheld, which
gives a worthless and ill‐conducted man the entire
custody of his children. The idea that a sinful mother
should be allowed to look upon, speak to, or caress the children of an injured
husband, was monstrous, was incredible, and called forth eloquent and proud
rebukes on the occasion of the discussion of the Bill: but the idea that a
sinful father should in any way be interfered with, or prevented
from disposing of his children as best suited his vengeance or his caprice, was
quite incomprehensible to the defenders of his “right.” Truly this
is straining at a gnat and swallowing a
page: 43 camel;
to be so outrageously shocked at the sinful female parent seeing
her child at chance intervals and to be perfectly contented that the sinful
male parent should live with it, have authority over it, and
never part from its society! Verily, it is even justice, which
provides that the weak party who has erred, shall forfeit every claim of nature,
and be held to contaminate her child even by looks and words; and the strong
party who has erred, shall have precisely the same enjoyment of rights and
privileges as before! Vice, in the shape of the miserable and degraded mother,
is viewed with stern and merciless abhorrence; but vice, in the shape of the
husband’s mistress, is contemplated with indulgence, and made welcome to such
share of the young child’s society as the father may allow, which, as we have
seen in at least one instance, was the entire charge of his
wife’s infant.

Let those who sounded this false flourish of trumpets as an alarum or warning of
what might be, (by chance, and through successful perjury,)
contrived under the altered law; consider what is and has been done in the open
face of day, under the law as it now stands. Let them set against
the hazard of some bad woman obtaining access, the established
certainty, that bad fathers have wrested their children from
blameless wives, to force a disposition of property in their own favour, or to
gratify a brutal spirit of vengeance; that to a blameless mother, her diseased
and dying child has been refused; that from a blameless mothers care her
page: 44 innocent offspring has been transferred to the
home of a wanton. Let them set this proved and recorded certainty
against the imaginary and invented chance, and I think even the
loudest among the class of objectors will scarcely persist in affirming that the
opportunity afforded for perjury (in this, as in all other legal
evidence,) should be deemed a valid ground of opposition to the Infant’s Custody
Bill. The outcry on this point is of the same nature as that which was raised
upon the possibility of fathers who might resist the law being imprisoned for
contempt. It was thought frightful and atrocious that a father
should undergo such a sentence; but the fact that the mother at
present is the person liable to imprisonment for refusing to give up her
children, was quietly passed over, as if it did not signify what injustice
she endured. A petition was then before the House of Commons
from Mrs. Greenhill, whose husband obtained against her a writ of
attachment, or sentence of imprisonment, for refusing to give up her three
female infants after the discovery of his illicit connection; and a sentence of
the same nature had been passed on another woman the day the Greenhill case was
decided.

The two last objections—namely, that the relief afforded by such a measure of
protection WILL RENDER RECONCILIATION LESS PROBABLE; and
that the enforcement of access would interfere with the guidance and education
of the children—may be dealt with more briefly.

page: 45

The assertion that it would render reconciliations less probable, is an assertion
and nothing more. It is in fact affirming, that a woman is more likely to be
soothed into a gentler state of feeling by extreme ill usage, than by obtaining
partial justice; that while her husband grinds her to the dust, and inflicts
upon her the heaviest of human sorrows, (to wit, the loss of her children,) she
is more likely to wish to return to him than when he shews compelled mercy.
Granting that this were so; granting that in some cases, by inflicting a certain
degree of extreme misery on a woman, she would be brought to yield and return,
(as by the application of the rack in former days, a prisoner might be brought
to yield and confess,) how does that further the prospect of a reconciliation
unless the husband also shared in the wish that she should return?
What motive would there be in some of the cases contemplated by the Infant
Custody Bill, to induce him to share in that wish? As the law stands, he has the
power, first, to take a mistress; secondly, to put his wife away; and, thirdly,
to claim and take possession of his children. Having arranged all this as best
suits him, without interference or obstacle, where is the argument that should
make him reverse his plans and take back the wife of whom he has
got rid? He suffers neither sorrow nor inconvenience from the state
of things; on the contrary, he is in every point following out his own
inclination; why should he yield? This is one class of
separated husbands, with whom recon‐
page: 46 ciliation
would not be a whit the more probable be cause the woman was denied legal
redress.

The other class would be those husbands who more closely followed the argument of
the objectors; and actually considered the custody of their children as a
means and instrument in their hands; as an inducement to the
wife to return to her home, however unhappy; as a pledge, the forfeiture of
which can be held in terrorem over her to
prevent her resisting any violence or any insult. With women of a weak and timid
disposition, or of an irresolute and passionate spirit, joined with strong
affections, this might succeed; and if by reconciliation be meant simply the
return of a woman to her husband’s house, there is no doubt it might be effected
in many instances; though in others, where the woman shewed more fortitude and
nobleness, and at the same time more steady resistance of wrong, this permission
by law to rack the heart instead of the body, would be found
utterly to fail of its purpose. But the question is, on what principle the
legislature should give a man this power to torment; this power to say to his
wife “You shall bear blows, you shall bear inconstancy, you shall give up
property, you shall endure insult, and yet you shall continue to
live under my roof, or else I will take your children, and you
shall never see them more?” Or, on what principle, if his victim leaves him, he
is to say with hard and insolent triumph, “She shall return to her home, or weep
her heart out; I make no promise—I admit no man’s right to
page: 47 interfere—I care not what truth there may be in her
complaints of my conduct; all I say is, that either she shall
return, or she shall never again see or hear of her children.”
Can the return under such circumstances be deemed a “reconciliation,” or even a
voluntary and spontaneous act?

That reconciliations do occasionally take place between separated couples, and
that many more would take place were it not for false shame or false pride on
the part of one or other of the separated parties, and the eternal interference
of friends and relations, is very true. But it is greatly to be doubted that any
of these are such cases as would come under the Infant Custody Bill; or, if they
were, that reconciliation would be less probable, because one of the preliminary
steps towards cessation of hostilities was already taken, in the partial
admission of the mother to her child’s society. This objection is founded on the
notion that if a woman could see her children without returning to
her husband, it would not be worth her while to return; but this is
an argument based on very false notions of the degree and strength of a mother’s
love. To be allowed to see a little child occasionally, and be satisfied that it
was apparently doing well, might satisfy a father, because, at the
best he does little more in his own home: but no woman who could be
with her children, would be content merely to see them: the
permission to visit them might be an indulgence and relief in comparison of
being utterly excluded, but it never could be held to
page: 48 be the same thing as living with them. Sir Edward
Sugden, in his masterly, though somewhat lawyer‐like speech, in opposition to
the Bill, admitted that “he believed men had very little notion of the intensity
of a woman’s affection for her children;” and certainly they could not shew more
ignorance of its intensity than in the argument before us; making it appear one
and the same thing, whether a mother obtained leave to visit her offspring so
many times a year, or dwelt with them all the year round. A man would be very
much astonished if he were told of a young wife to whom he was deeply and
devotedly attached, who was devotedly attached to him, and who could receive
from no other human being the same degree of mingled love and protection as from
himself; that it must be just the same to him whether he obtained permission to
see her a dozen times a year, or took her home to his house; and
therefore, under certain conditions of difficulty, it was more
than probable he would not press his right to take her home. Yet this is the
argument on which the lessened probability of reconciliation is founded: a man
cannot love his wife better than a mother loves her child; not though he felt
for her every sentiment of esteem, respect, tenderness, and admiration, which
ever combined to give root to strong attachment. Neither man nor woman will be
easily contented with a small portion of the society of those they love; witness
the rashness, the risks, the mad follies committed, and the dangers run, in
page: 49 illicit connections, where less apparent
intimacy and frequency of communication might save both parties from suspicion.
The human heart is too fervent, there is too much craving in its love, to bear
patiently this meting and measuring out of hours; and for this reason, though a
woman might thankfully and readily accept as a boon such intercourse with her
children as the intervention of the law could give, the temptation and
possibility of a return to the home which was theirs would remain
as strong as ever; nay, I do not think I speak in ignorance of feminine feeling,
when I say it would be stronger than ever; for an irrevocable
parting may have a power like that of death, gradually to cause the object of
regret to fade into a vague and painful dream; but the love whose memory is
constantly refreshed by partial hope and partial communication, will yearn for
something more; and the woman must be of a very stern character, or a very cold
nature, who, seeing her children occasionally, would not consider within herself
what obstacles existed to her return, and what was their weight; or whose
thoughts, while in her infants’ presence, did not occasionally wander back to
the days when those children (now a source of bitter warfare,) were the bond of
mutual interest and affection between her and her husband—a bond which God has
willed shall remain unbroken and perpetual, amid all the strife of hearts, and
the ruin of destinies, which the sin of man or the sin of woman may entail. So
thinking, and so feeling, (as it is natural to suppose
page: 50 she would think and feel,) can any one believe that
where reconciliation was possible it would not take place? and
where circumstances made it impossible, can any one think it just
that a man should have a right to angle for his wife’s return,
(under any, the most revolting circumstances,) by the power of retaining and
dividing her from her children?

VI. The last objection, (and also, I think, the one that has least shadow of
justice,) is, that the enforcement of access would SO DISTURB
THE EDUCATION OF THE CHILDREN under the husband’s superintendence,
that it would be impossible for him to carry it on properly. This is at once
assuming that the permission of access will be abused; that it will be obtained
by an unworthy woman; that the mother will not have any true affection for her
children, but only hatred of her husband. In short, it is begging the whole
question, and considering the relief intended for virtuous wives with profligate
husbands, as an indulgence invented for profligate and
ill-conducted
ill-con-conducted
wives with just husbands; it is considering the relief
intended to be granted at the discretion of the court, after a careful review of
the whole circumstances of the case, as a relief rashly, blindly, and stupidly
allowed, without any reference to such discretion.

For how otherwise, except by thus begging the question, can it in
any way be expected that the visits of the mother should be injurious? It is
urged
page: 51 that she will endeavour to justify
herself to her children at the expense of her husband; but what necessity is
there of any justification, unless it is presupposed, on the other hand, that
the husband takes advantage of his more full communion with his infants to abuse
and set them against his wife? And, even were this the conduct pursued by the
father, it does not follow that the mother would either need justification in
their eyes, or that she would be at once so base and so foolish as to endeavour
to cause hatred to spring up in their hearts towards the father on whom they
depend and to whom they owe obedience. It would be impossible to
explain to children of a tender age the circumstances of a family quarrel; no
woman would be mad enough to attempt it, knowing that the only effect must be to
shake and unsettle their minds on the great principle of parental duty, without
giving her any advantage in their affections, which an hour’s persuasion and
reasoning from their other parent might not equally undo. Besides, it is not
only probable, but natural, that in some cases a woman may heartily and
sincerely desire that her children may love their father, although
she be separated from him. A woman of a proud and jealous disposition may part
from her husband for his inconstancy, but his inconstancy will not appear to her
a bar to his children’s affection. Many women, who have separated rashly and
passionately, or who have been “put away” by their husbands, would in their
secret hearts be glad of an
page: 52 opportunity to
return; and these women are far more likely to endeavour to impress their
children with such notions as they may wish repeated to the husband, than to say
any thing in his disparagement. As to the mother’s “justification,” she is very
unlikely, as I have said, to need one; there is so strong an instinct of
affection implanted by God in the young child’s heart, towards the being who has
watched over his helpless infancy, that the difficulty is to be found,
not in justifying a mother in his eyes, or preserving a due
share of fondness for her; but, on the contrary, in any ways degrading or
bringing him to dislike or forget her. You may teach a child that his mother is
an object of contempt or hatred to those around him; he will feel and know it as
it were by instinct, for children are most accurate observers. You may teach him
to hush his little voice to a whisper when he utters her forbidden name, or
never to pronounce it; for this is only an effort of his half‐matured reason to
show submission and compliance to those in authority over him; but Nature’s
great instinct will remain nevertheless strong and unchangeable except in rare
instances. He will love and honor his mother; he will sometimes wonder at her
absence, and sometimes pine for her return; he will comprehend that she is the
subject of vehement displeasure, without comprehending that she has deserved it;
he will perceive that there is “a quarrel; but nothing wherefore.”

There is another very strong plea in answer to this
page: 53 argument that the mother’s visits and influence will
disturb and set aside the principles of education implanted by the father: and
that is, that as the father’s custody is seldom or ever real, as
the child, though nominally in its father’s possession, and under his authority,
is almost always of necessity confided to a third party, (and all the recorded
instances shew this to have been done,) the mother’s visits, in fact, would not
interfere a bit more with the child’s education, than the visits of the father.
But as this matter of nominal and fictitious custody, on the part
of the father, is elsewhere alluded to in my letter, I shall not here dwell upon
it; conceiving that enough has been said relative to an objection whose only
force consists in assuming, that the court in which the power of protection may
be vested will grant access to women grossly, basely, and revengefully disposed;
slanderers of their husbands, and selfishly careless of the real interests and
improvement of their children.

I have, as far as lies in my power, pointed out what I conceive to be the
unsoundness and injustice of all the principal objections urged against the
spirit of the Infant Custody Bill; leaving its technicalities to be dealt with
by others; and I shall now entreat your Lordship’s further attention to a few
brief observations on a very singular attempt at opposition to the Bill; founded
neither on a fair remonstrance against its probable results, nor a fair enquiry
into its defects as a practical measure; but simply on grounds of abuse of
certain individuals, and more especially of
page: 54 the
framer and originator of the measure introduced last session.

While the Bill was in progress, and before it had been brought up to the House of
Lords, a pamphlet in opposition to it, containing about an equal portion of
invective and argument, was sent round to the members of that assembly. It was
entitled “An Exposure” of the immoral tendency of the Bill; and the author
modestly wound up with a sentence expressing his hope that the House of Lords
would reject the measure in spite of its having been passed by
large majorities in the Lower House; as, by seeing his pamphlet carefully
forwarded to all the Peers, he had left them “no excuse” for
deciding as foolishly as the Commons.

Apparently however, even the author himself entertained very strong doubts as to
the Peers availing themselves of the advantage over the Commons, afforded them
by the possession of his pamphlet; for he afterwards published it
(with the addition of a great deal more invective and personal abuse) in a
periodical journal; where it lost the title of the “Exposure,” and, like a snake
in summer, casting its old skin for a new one, assumed the respectable garb of
“A Review” of the speeches of Mr. Serjeant Talfourd; of a pamphlet in
favour of the Bill, privately printed and circulated, and attributed
to the Hon. Mrs. Norton;* and lastly of an
article in the Metropolitan,

* This lady published a letter, (in contradiction and
disproof of the slanders connected with her name by the Reviewer,) which
appeared at the time in most of the Morning Papers.

page: 55 which the writer of the Exposure also gave to Mrs.
Norton, for reasons which will presently appear. The “Review” of these different
subjects, was published in the British and Foreign Quarterly; said to be edited
by one of the sons of Mr. C. Kemble (a name which it is new to find even in
remote connection with vulgarity, bad taste, and want of common generosity and
gentlemanlike feeling). However, in this particular journal, the rechaufée of the overlooked pamphlet was sent forth
to the world, and, under pretence of arguing the general merits of such a
Measure of Protection as was proposed, falsehood and slander, expressed in the
most vehement and unmeasured terms, were poured forth upon the individuals
chosen as subjects of attack. Those individuals were Mrs. Norton and Serjeant
Talfourd: Mrs. Norton, on the supposition that she had been the means of calling
the learned Serjeant’s attention to the state of the law relating to Infant
Custody; and Serjeant Talfourd, on the supposition that his Bill was brought
forward chiefly with reference to that lady’s particular case; in support of
which suppositions the author drew a very ingenious little sketch of invented
and combined circumstances, which he denominated “The Secret History of this
Bill.”

When I first mentioned my intention of commenting on this professed “Review,”—I
was earnestly assured that it was quite unnecessary: that the spiteful
vehemence, gross personality, and childish folly of the greater part of the
argument, would of itself pre‐
page: 56 vent any
reasonable man from being gulled into a belief of the subjoined statements; that
Mrs. Norton’s own letter in contradiction, however well written, was ill‐judged,
inasmuch as it called attention to what otherwise would never have received any
attention at all: namely, the article alluded to. To these gratifying assurances
I heartily wish I could have said “amen;” but experience has convinced me that
there is no falsehood so foolish, no scandal so gross, no assertion so
improbable, that it will not make its way into the world at large, and receive a
credulous and confiding welcome. Whether it be that human nature, conscious of
its own weakness, inclines always to an easy belief in errors, or whether it be
“that passion for hunting something,” observed upon by one of the most popular
writers of our day, and which leads us to indulge eagerly in a sort of moral
hunting down of a given object; it is certain that so far from a false and
injurious report requiring no contradiction, a man shall hardly
find that method of contradiction which shall be strong enough to counteract its
effects. Let any disinterested spectator watch the difference of feeling with
which an evil report and its disproof (however positively and clearly it may be
disproved) are received. The one is heard with avidity, with boundless and
unenquiring credulity, and with something which, if it is not actually
thankfulness for having been made aware of so much harm of a
fellow creature, is very near akin to that feeling. The
contradiction is received sullenly, sus‐
page: 57 piciously; occasionally with no slight degree of
irritation, as though you were robbing a man of something precious that belonged
to him, by taking away his belief in a scandalous rumour. A thousand questions
are asked with a view to shake the testimony of the disprover; the most
ingenious and insidious cross‐examinations are entered into, such as would do
credit to any lawyer at the bar, in the hopes of shewing that the said disprover
is mistaken; and at length, just as he imagines no further doubt can exist of an
unfavourable nature, the believer bows his head with an unsatisfied nod, and
murmurs that “nevertheless he had it on good authority;” as though to assert his
right still to consider “that there must be something in it.”—No;
it is as vain to imagine contradiction unnecessary, as to hope that it can ever
be more than partially successful; for, (to return to our borrowed simile,) we
might as well attempt to whistle back a pack of hounds, as to check a certain
portion of that busy crowd called “the world,” in full cry after a
slander. But there are just men among us, as well as the
unjust: and to their patience I appeal, if it be thought that I
lay too much stress on the opposition of an intemperate and anonymous
publication. The mischief a man does, is not always proportioned to his talent:
the sting of the scorpion may wound, as well as the stroke of the sword: and as
the habitual prejudices of men are easily startled by that which is made to
appear an infringement on their proper rights and privileges; as,
consequently
page: 58 an argument which affects to
uphold those rights, and defend those privileges, is likely to be received with
indulgence; and much absurdity, much exaggeration, much violence, excused for
the sake of the principle on which it is supposed to be conducted; I have
thought it as well to expose the nature and falsehood of the article referred
to, after answering the real objections made to the general question. It is
already a sufficiently lamentable reflection how large a portion of our
weekly press, (edited too, by gentlemen whose abilities would
do credit to better employment,) seek popularity by catering for the vitiated
and unintellectual taste of scandal‐mongers. But if this infection is to spread
to our Reviews and Quarterly Journals; if, in lieu of temperate and grave
criticism, we are to be presented with pages of spiteful and untrue gossip; if a
man is to be allowed to spend three months in putting together in cold blood all
that he can invent, and all that he can falsify, respecting individuals; and
then print the confused mass as a “Notice” of a legislative question, or
“Review” of a political brochure; if the celebrity of literary or professional
men, and the characters of women are to be attacked, not only for the hebdomadal
entertainment of those who are not capable of reading or understanding graver
and worthier matter; but for the misleading of such persons as may, and do,
expressly seek for serious information on a subject of public interest, (which
subject is therefore made the ostensible title to entrap them into a perusal
of
page: 59 private slanders;) if all this is to be
done, and done with impunity, the new literary fashion will make “Reviews” as
unprofitable to the readers as discreditable to the writers.

With respect to the attempt made in the British and Foreign Quarterly, to set
this fashion of personalities, I hope to shew that the attack upon individuals,
there, has not been very successful; and waiving in this instance the precedence
to which ladies are considered to be entitled, in order to disprove at once the
imputation conveyed against Serjeant Talfourd, I beg leave, in answer to this
anonymous author’s “Secret History of the Bill,” to give the Real History and
Origin of that measure, in which there is as little shuffling or mystery as the
plainest and most honest man could desire.

In the year immediately preceding that session of Parliament, during which
Serjeant Talfourd made a successful attempt in the House of Commons to revise
and alter the law of Infant Custody, he had himself been employed as counsel in
two cases of dispute respecting the “father’s right.” In both these cases he was
counsel for the husband; in both, the circumstances were of extreme
hardship as respected the mother; in both, Serjeant Talfourd’s explanation and
support of the present state of the law (as admitting of no
consideration of the mother) was successful; and the husband obtained a writ of
attachment or sentence of imprisonment against his wife. One of these cases was
that of a lady married to a gentle‐
page: 60 man of
foreign extraction, named Anichini, who was committed to prison by Mr. Baron
Gurney for disobeying the order made by him for delivering her daughter to her
husband; but the order being referred to Mr. Baron Parke, at the earnest
entreaty of all the Judges of the Exchequer, was never publicly discussed; and
to that case, therefore, (in common with many others, which, however well known
to the learned Serjeant, were not on record in the law reports,) no public
allusion was made, on the discussion of the Bill.

The other case in which Serjeant Talfourd was employed (as counsel for the
husband), was that of Mrs. Greenhill, who afterwards presented a petition to the
House of Commons, and the report of whose painful history may be briefly copied
here.

In the year 1829, Miss Macdonald (daughter of Colonel Macdonald, of Exeter;
grand‐daughter, I believe, to Sir W. and Lady Chambers; and niece to Mr.
Chambers the magistrate;) was married to B.C. Greenhill, Esq., of Knowle Park.
Three infant daughters were born of this marriage; and Mrs. Greenhill, in the
autumn of 1835, was residing with these children at Weymouth, when she received
intelligence that her husband (who was at that time absent in his yacht) was
unfaithful to her; that he had for more than a year cohabited with a female of
the name of Graham, passing her off where he was not known, as his
wife, and allowing her sometimes to assume his name; while at
others he adopted the
page: 61 name she
went by, and styled himself “Mr. Graham.” Mrs. Greenhill, overwhelmed with
sorrow and indignation, returned to the protection of her own family, and
commenced proceedings against her husband for divorce in the Ecclesiastical
Courts.

On Mr. Greenhill being informed of the discovery that had been made, and the
plans his wife had in consequence adopted, he became anxious to prevent the
proceedings in the Ecclesiastical Courts, and accordingly sent his attorney to
obtain an interview with Mrs. Greenhill, and induce her, if possible, to
relinquish the proceedings. The outraged wife, however, expressed her resolution
to adhere to the measures adopted in unison with the opinions of her own family;
and, finding that she would not consent to forego the suit, her husband changed
his tone, and his solicitor was instructed to write and make her aware of the
insult and injury which would be added to the wrong she had already
suffered, in the event of her persisting to go into the Ecclesiastical Court;
which was accordingly done: and she was ordered instantly to resign her
children.

Mrs. Greenhill did not, however, obey this command; and the next step taken by
her husband was to move for a writ of habeas
corpus, compelling her to produce the three children on the 28th
October, at the house of Mr. Justice Patteson. As soon as the writ was issued,
and before its return, the mother instituted a suit in Chancery, for the purpose
of making the children wards of that Court; and a petition
page: 62 was presented praying the PROTECTION
OF THE COURT, and that a proper guardian might be appointed.

On the night of the 28th October, in obedience to the writ of habeas corpus, Mrs. Greenhill having arrived with
her children from Exeter, appeared with them at Mr. Justice Patteson’s. Some
argument by counsel on each side took place before his Lordship, who ultimately
allowed the matter to stand over till the evening of Thursday, the 5th November,
the children meanwhile remaining with the mother, and their presence being
dispensed with by the consent of all parties.

On the morning of Thursday, the 5th November, the petition in Chancery was heard
by the Vice‐Chancellor, and six affidavits were read before him, the substance
of which was as follows:—

That Mr. Greenhill had, as already stated, carried on an adulterous connection
with Mrs. Graham, for more than a twelvemonth; and that he positively
refused to part with her (although he affirmed, that he had expressed
his regret and contrition to his wife, and made overtures of reconciliation);
that on being told by his wife that she had heard he had taken a house for three
years for this woman, he replied, “it was no business of hers if he
had taken it for ten years;” that he allowed Mrs. Graham to take his wife’s
name, and call herself “Mrs. Greenhill;” and at other times he
called himself “Mr. Graham;” and that he desired the servant, who also
occasionally waited on his wife, to wait on this woman, and drive
page: 63 her out in his cab; that he left his wife at
Weymouth, to go and live with Mrs. Graham at Portsmouth; and that he took her
with him in his yacht, &c.: in short, that as to the act of adultery it was
neither attempted to be concealed or denied; but, on the contrary, he had
admitted it to his wife’s uncle and other relatives, and expressed his
determination to persist in the intimacy he had formed.

That Mrs. Greenhill firmly believed, that her children, if taken from her, would
be prevented from seeing her, and delivered over to her husband’s
mother, Mrs. Mary Tyler Greenhill; that the said Mrs. Mary Tyler Greenhill had
not only abused and quarrelled with her daughter‐in‐law, and refused to see her
grandchildren, but that she had been at law for years with her own
son; and that so bitter was their estrangement, that Mr. Greenhill
had said to a friend who advised him to be reconciled to his mother, that such
reconciliation was impossible; and that they were, in fact,
only drawn together by the anger of Mr. Greenhill against his wife,
and since the quarrel between the parties. That for these, and other
reasons, neither Mrs. M. Tyler Greenhill, nor Mr. Greenhill himself, were fit
persons to have the custody of these infant children, and that their mother
was a fit and proper person, and neither her husband, nor
any other person, alleged anything to the contrary, nor had there been at
any time a shadow of imputation against her. That Mrs. Greenhill’s
own mother, Mrs. Macdonald (who had always been on good terms with her
son‐in‐law, and had
page: 64 shewn him great affection,
especially in nursing him through the cholera, when every one else, from fear or
prudence, withdrew from the house), was willing to receive his wife and
children; to give them a permanent home with her; and was also willing that
the father should come and visit his children, at her house, as often as he
pleased. That Mrs. G. was fondly and devotedly attached to her little
girls, and had never been separated from them; and that the father had always
been in the habit of leaving them under her sole custody and control during his
absence from home; and though it was affirmed, on the one hand, that Mr.
Greenhill was a fond and attentive father, yet it was sworn in contradiction,
that one of the little children being brought into the room with several
strangers, asked Mrs. Greenhill’s uncle, “if he was papa,” from
which it was argued, that they had not been in the frequent habit
of seeing him, since his connection with Mrs. Graham. Finally, it was sworn,
that Mrs. Greenhill had always fulfilled, to the utmost, her duties as a wife
and mother; and that there was no possible ground for depriving her of her three
little girls, but, on the contrary, every reason why she should be permitted the
care of them; and that her health, already very delicate, had suffered so much
from the terror, agony, and sorrow, which she had lately endured, that it was
expected she would sink under the blow (if inflicted) of that forcible
separation.

All this having been sworn, the Vice‐Chancellor gave an adverse decision, and
dismissed the petition;
page: 65 the mother’s separate
claim not being acknowledged by the Court.

Similar affidavits were read again the same evening, before Mr. Justice Patteson,
who was attended by counsel on each side. His Lordship took time to consider
these affidavits; and said that before he decided, he would consult the other
judges.

On the 10th November, his decision also was given against the
mother’s claim, and he signed an order that Mrs. Greenhill should forthwith
deliver up to Mr. Greenhill his three infant children.

On the 12th, that order was made a rule of Court, and served
personally by Mr. Greenhill on his wife, of whom he, at the same
time, demanded the children. Mrs. Greenhill gave only a written reply, couched
as follows:—

“Mrs. Greenhill is desirous of paying the utmost respect to the Court; but as she
feels that the health and comfort of her three infants (under the age of six
years), will be destroyed by their removal from her care, she prefers
sacrificing herself, if it be called for, rather than so sacrifice
her children; being well assured, that their removal is with the
ultimate intention of excluding her from all communication with them.”

Mr. Greenhill’s next step was to make affidavit of the service of the rule, and
of his wife’s refusal to part with her infants, in order to obtain a writ of
attachment against her; i.e.—to cause her to be imprisoned for contempt of
Court.

page: 66

Mrs. Greenhill, on her part, obtained a rule nisi in the Court of King’s Bench, calling on her husband to shew
cause why Mr. Justice Patteson’s order should not be set aside, and the children
remain with their mother.

A short delay was granted to Mrs. Greenhill to shew cause why an attachment
should not issue against her; and the same delay was allowed to Mr. Greenhill to
shew cause why Mr. Justice Patteson’s order should not be discharged.

The matter was argued on the 24th November—Mr. Serjeant Talfourd appearing for
Mr. Greenhill. At the conclusion of the learned Serjeant’s address, Lord Denman
observed that it would be better that some arrangement should take place, so
that both parties should have access to the children; and to effect
that object a further delay was given. On the following day, Mr. Serjeant Wilde,
Mr. Serjeant Talfourd, Mr. Greenhill and his attorney, and Mrs. Mary Tyler
Greenhill, met for the purpose suggested by Lord Denman; but owing, as affirmed,
to the obstinacy and perverseness of this lady (who seemed determined to prevent
her son from coming to any reasonable terms), no arrangement was entered
into.

On the 30th instant, Mr. Greenhill declared, through his attorney, that no
further steps would be taken for such arrangement; and demanded to see the
children. Mrs. Greenhill becoming alarmed lest they should be seized from her,
withdrew precipi‐
page: 67 tately and left the kingdom,
taking with her her three little girls.

In January the matter was again argued (Mrs. Greenhill being still abroad), and
the rule obtained by her, to set aside Justice Patteson’s order, was discharged;
or, in other words, the last attempt made by this unhappy and unoffending woman
legally to retain possession of her infant children failed; the decision of the
judges being given against the mother’s claim.

In the course of the arguments advanced by the counsel on either side, at the
different periods of this cause, the following observations were made in support
of Mrs. Greenhill’s case:—

“The children are all females, and infants of tender years, and whom it appears
most UNNATURAL to tear from a mother who is devotedly
attached to them, against whom not a shadow of imputation rests, and who her
husband does not hesitate to admit is in every respect a fit and proper person
to have the management of them. Illegitimate children under the age of nurture
(which has been held to be seven years), cannot by law be taken from the mother;
and it seems most unnatural and unjust that legitimate children should be in a
worse position.”

“Mrs. G. does not dispute her husband’s right to the custody of the children. She
has offered to take them to any part of England Mr. G. shall prescribe, and to
obey his injunctions, provided she be not wholly separated from them. The
question in this
page: 68 case is, not whether the
rights of the father are paramount, but whether the law is entirely regardless
of the natural claim of the mother.”

“The mother does not even insist that the children shall be in the same house
with her, but only that she shall have access to them. The real
question is, WHETHER THE RIGHT OF THE FATHER AMOUNTS TO THE
EXCLUSION OF THE MOTHER.”—“Where the father applies, as in the
present case, not for the purpose of really asserting his own right, but merely
for the purpose of excluding the mother from having access to her children, this
court will (in the exercise of its discretion) refuse to permit so harsh and
cruel a proceeding: and pause before it makes an order to deprive children of so
tender an age of the care and superintendence of the mother. The court may
be quiescent, and is not bound to act. If this rule is made absolute,
Mrs. Greenhill will have no means of superintending the education of her infant
daughters, nor will she be able even to see them.”

Such were the arguments advanced by the advocates of this young wife and mother,
and such were the arguments Serjeant Talfourd had to rebut; supported as they
were, by the eloquence of two gentlemen of the highest reputation at the bar,
Serjeant Wilde and Sir William Follett. The clear and palpable injustice of the
case it would have been impossible to deny, nor was it disputed or touched upon;
but the learned Serjeant argued, that former decisions shewed the legal right
under all circumstances
page: 69 to be with
the father. In the year 1804 there was a recorded case of disputed custody,
between a separated couple of the name of de Manneville, where the husband
entered by force and stratagem the house of his wife’s mother, (whither she had
withdrawn from his brutality and violence,) and seizing her infant, (then at the
breast,) carried it off in an open carriage in inclement weather. His motive was
to force his wife to give up some property she possessed separately.
She appealed to the protection of the courts, but they decided
against her.

In the year 1824 there is recorded a second case of disputed custody between a
separated couple of the name of Skinner; in which (the parties being separated,
from the cruelty and brutality of the husband,) the wife’s child was actually
taken from her, and given into the custody of the woman with whom the husband
cohabited: the husband being then imprisoned for debt in Horsemonger Lane Jail.
This mother also appealed, and in spite of the gross
circumstances of the case, the courts decided against her.

In the year 1827 there is recorded a third case of disputed custody, between a
separated couple of the name of Ball; in which the wife had obtained a divorce
â mensâ et thoro on account of her
husband’s bad conduct. Her young daughter (who had continued with the mother,)
was seized by the father one day that she went to visit him, and was sent where
the mother could not for some time discover her.
page: 70 When she did find her child, she was not allowed to see her except in the
presence of the person who had her in charge. This lady appealed also, and
offered to maintain and educate her daughter without assistance from the father;
but the court decided against her.

In the year 1830 there is recorded a fourth case. of disputed custody, between a
separated couple of the name of M’Clellan. The child was at school, and became
afflicted with scrofula, by which disease the mother had already lost two other
children. She persuaded the governess, from motives of compassion, to allow her
to take home her child and nurse it. The father procured a writ of habeas corpus to take the child out of the mother’s
custody, and send it back to school. The cause was argued, and a very feeling
speech was made by Mr. Justice Patteson on the peculiar circumstances under
which the mother resisted; but the court decided against her.

Serjeant Talfourd, in opposing Mrs. Greenhill’s claim, went through all these
recorded cases, which he afterwards noticed in the parliamentary discussions on
the Infant’s Custody Bill. The introduction of them in his speech was much
insisted upon by the writer in the British and Foreign Quarterly, as proving the
“ remarkable coincidence” between the instances of hardship
quoted in Mrs. Norton’s pamphlet, and those mentioned by the learned Serjeant:
the writer never perceiving, in his mingled irritation and stupidity, that
of course if the instances were
page: 71 taken from the printed legal decisions, it was impossible they should be
otherwise than the same: and that the most ingenious person,
copying from “East’s Reports,” and “Dowling’s Practical Cases,” could scarcely
introduce variety into that very monotonous task.

These cases, then, were familiar to Serjeant Talfourd, and relied on by him in
the successful support of a client’s legal right, in the autumn of 1835; when,
unless the gift of prophecy had been added to his various talents, he could not
possibly have foreseen that the same species of dispute would arise between Mr.
and Mrs. Norton, as was then being argued between Mr. and Mrs. Greenhill.
Doubtless it is an ungrateful and painful task for any man to be compelled as an
advocate to uphold and defend a legal right which he perceives to be grossly
oppressive and injurious in its consequences: nor can it be wondered at, that
his successful pleading in a case like the one we have narrated, should have
given rise to a very different feeling from the professional satisfaction which
may be supposed to attend successful pleading in general.

He had obtained a decision adverse to the mother, not because she had in any way
deserved that heavy sorrow; not with any reference to real and natural justice;
but simply because PRECEDENT (the lawyer’s God,) was
against the admission of her claim. He had been compelled to support that as an
advocate, which as a man, possessed of the same generous
page: 72 sympathies as his fellow men, he must have felt to be
iniquitous and absurd. He was not an unknown or obscure lawyer, who might have
found the effort to draw public attention to a subject connected with his
professional practice, replete with difficulty: he had a name and a place among
the proudest of the land: among the members of the legislative assembly of Great
Britain; a place, not hereditary, but won by the gift of talent; that gift
which, when combined with opportunity, a man is as much bound to use in the
service of his fellow‐creatures, as the rich are bound to give alms.

Serjeant Talfourd did avail himself of his opportunities. He called
the attention of Parliament to the defective state of the law; he brought under
the notice of other men, the facts and instances of its abuse so painfully
forced on his own consideration; he besought them to vote with him for its
alteration, that when hereafter some young mother appealed English justice not
to suffer her to be parted from her children, merely because her
husband preferred a wanton to his wife; some better answer might be made, than a
recapitulation of all the infamous cases of hardship which proved that it was
the law that women should suffer without redress—that it was
‘so written in the bond.
’
The last decision in Mrs. Greenhill s affairs, as to the rule obtained
to set aside Mr. Justice Patteson’s order, was given in January 1836. The
measure proposed by Serjeant Talfourd was submitted to the consideration of the
House of
page: 73 Commons in April 1837; it was read a
second time that session, but on the 20th June the death of the King taking
place, the learned Serjeant being consequently obliged to leave town to canvass
the electors of Reading, and the consideration of all but measures of the most
immediate and pressing public importance being by common consent suspended
during the brief and hurried remainder of the session—the third reading was put
off till the ensuing spring, when the Bill was passed in the House
of Commons by a majority of four to one.

Such is the simple outline with which I am enabled to confound the arrogant folly
of the author who invented the “Secret History” of this public measure; and
whatever the difference of opinion may be as to the probable efficacy of its
provisions, whatever defects may have existed or been supposed to exist in it,
no man can say that the occasion which first gave rise to its introduction was
not a most just, proper, and natural opportunity for the exertions made by
Serjeant Talfourd to obtain a more equitable law.

It did not however suit a certain class of the opponents of the Bill to admit
this as the original cause of the measure to which they
objected. They smothered all allusion to it—they suppressed it as if it had not
existed; they feared a case so clearly and iniquitously unjust, ending in
decisions so palpably absurd, would prove too strong for all the plausibilities
they could muster in behalf of the non‐intervention system.
page: 74 They dreaded lest the hearts and minds of all
unprejudiced men would be brought by this case to feel and understand the full
importance of a subject hitherto shrouded from the public eye; and which, they
trusted, might after an unsuccessful struggle be once more consigned to
obscurity. It was necessary to bring forward some more disputable case,—some
case whose details were less known, and where they could therefore assume more,
and admit less. They were assisted in this by the restless eagerness and open
interest shewn in the success of the measure by Mrs. Norton, of whose affairs
all that the public knew was that she had been slandered in the coarsest manner
in an open Court of Justice; and who being herself of a family greatly
distinguished, and accused with a nobleman of high rank and official importance,
had been the object of much public curiosity, much public censure, eager
partizanship, and bitter personality. Here was a case where party feeling and
private opinion might be supposed to be divided; where prejudices might be
roused, and doubtful judgment appealed to. This was what the objectors wanted;
on this they seized with delight. Although in Mrs. Greenhill’s case there had
been pleadings in Judge’s chambers, in the Court of King’s Bench, and in the
Court of Chancery; and in Mrs. Norton’s there had been no pleadings at all;
although Serjeant Talfourd was directly employed in the one case, and only
partially cognizant of the facts relating to the other; it was settled at once
what motive should
page: 75 be ascribed to make the new
measure at least partly unpopular; and the warning cry was
raised,—“Pause! do not pass the Bill; it is brought forward by Serjeant Talfourd
at the instigation of Mrs. Norton; it is to secure a possibility of appeal to
that one woman; it is because circumstances have induced her husband to withhold
her children, that this impudent attempt is made. Let not
members of Parliament be lectured and sentimentalized into voting for such a
law, only to serve the private ends of a woman who probably deserves all she
suffers.” This was the tone taken, and it is one to which the merit of much
cunning and ingenuity must be awarded—for falsehood never pleads so successfully
as when it wears the mask of justice, and appeals in the feigned voice of
rectitude and honour to the staunch and true feelings of the human heart. But
the declaimers against the measure stood on more dangerous ground than they
imagined, when they falsely selected this case as Serjeant Talfourd’s
justification for endeavouring to alter the law. In assuming the very natural
prejudice which would exist in the minds of many in consequence of the public
scandal referred to, it never occurred to them to enquire whether that public
scandal was the cause of the children being taken away, or the
result (the revenge I had almost said,) of the mother’s
resistance to their being taken away. The objectors to the Bill have dragged
forward Mrs. Norton’s name in the discussion of this subject, not as
one among those interested in it, but as the sole
page: 76cause of its production. They have dragged forward her name
for the purpose of creating a prejudice against the measure, and have
cared little what falsehood they coupled with it in their strong desire to
attain that end. If, therefore, there is anything which disappoints and
confounds those who have relied on this case for establishing such a prejudice,
in the following statement, they have only to thank the spirit of injustice and
gross personal animosity, whose long continued indulgence has at
length called it forth. It is very true, as has been scornfully
argued, that it is a matter of no interest to the public how the quarrel between
this particular couple will terminate, or what its former features may have
been; nor, with reference to the attack in the British and Foreign Review, is it
of any importance to the public that Kemble’s son should make his editorship of
a magazine an instrument for flinging mud at Sheridan’s grand‐daughter; but that
which is of the utmost public importance, of the most vital
interest, is whether the two Houses of Parliament were duped by one
of the most distinguished members of the Commons into the reception and
discussion of a mischievous measure, framed and brought forward in fact to
gratify a particular individual, the doubtful circumstances of whose case were
such as cast a slur and discouragement on the measure itself as applying to
separated wives. The facts are as follows:—

It appears that during the eight years of union previous to the separation, Mrs.
Norton had been twice
page: 77 compelled by
the conduct of her husband to seek the protection of her own family, from open
violence, and other grievances with which we need not deal. On both these
occasions the husband besought forgiveness, made promises for the future, and
was reconciled to his wife. Mrs. Norton was attached to her children; it is to
be presumed she was also attached to the father of her children, and that the
usual “checks” against separation had due weight with her. She returned a first
time; she returned a second time; and remained under her husband’s roof. It was
after this last reconciliation that her family (who had discountenanced it as a
vain experiment), withdrew from Mr Norton’s society. It is unnecessary to enter
into their motives; they ceased to receive him at their houses. or to hold
familiar intercourse with him. Mrs. Norton being about to pay a visit to her
brother in the country, accompanied (under these mortifying and disagreeable
circumstances) only by her children, Mr. Norton took the
opportunity, on the very morning of the intended journey, privately and suddenly
to withdraw these infants. There was no threat or warning of such intention; nor
did the mother at first discover where they had been conveyed; and when she had
at length traced them to the house of a lady with whom her husband was intimate,
she was unable even to obtain a sight of them.

It will naturally be supposed that this extraordinary measure had some connection
with the trial which
page: 78 afterwards took place,
instead of its arising out of a family quarrel. Mrs. Norton’s personal enemies,
and the objectors to the Bill, have laboured to convince themselves and others
that such was the case. It will therefore surprise them to learn, that it was
not till six weeks after the carrying away of his children that it
even occurred to Mr. Norton to bring an action, or to feel the
least jealousy of the nobleman who was defendant in that cause. The first step
adopted, after mutual threats of separation and angry complaints had been gone
through, was on Mr. Norton’s part, to make an offer (reduced to writing by a
mutual friend,) to leave his wife at peace on condition that she remained with
her brother, consenting only to see her children occasionally, and
requiring no pecuniary provision from her husband. To this
letter Mrs. Norton replied, with the usual rashness and ignorance of the law
evinced by women, by refusing to give up her claim to her children, and by a
threat of suing for alimony, and seeking a legal separation. Mr. Norton then
attempted to reduce his wife to submission to his terms by threatening attacks
on her character. Without professing jealousy of any individual, he passed in
review all his wife’s male acquaintance. Legal examinations were
taken in about half a dozen different instances, but they were taken in vain.
Wishing a woman guilty, fortunately does not make her so, and the advisers of
these outrageous measures were disappointed. Mr. Norton then wrote to his wife’s
uncle, Sir James Graham, to notify the
page: 79
cessation of these legal proceedings, and his willingness to enter upon quiet
and decent arrangements for a separation: Sir James Graham, in an interview
which followed this communication, demanded as a preliminary to any
arrangement, a written retractation of the various charges which had been made
against his niece; and so far was Mr. Norton at that time from adopting the tone
(afterwards taken for him,) of an injured and outraged husband,
that the counter‐condition made with Sir James was, that the charges urged
against Mr. Norton himself by his wife’s family, should also be
retracted; a pledge which this mediator had no power to give. Mr. Norton then
requested twelve hours to consider whether he would sign an
unconditional retractation; and the next day he informed Sir
James Graham that he had consulted his friends, changed his mind, and that he
would bring an action against Lord Melbourne; this being the first time that
nobleman’s name had been mentioned, or any notion entertained of making him the
nominal and apparent cause of a separation with which he had
nothing whatever to do.

Then followed a trial, such as Lord Brougham graphically described in the House
of Lords, while opposing this very Bill: “where the wife has no defence, but
behind her back, by the principles of our jurisprudence, her character is tried
between her husband and the man called her paramour.” It availed nothing that
numerous friends and relatives could have deposed to the circumstances under
which
page: 80 the separation took place; to the
treatment of the wife previous to the separation; to the fact of this accusation
having been got up, as a last resource and engine of attack, six weeks
after the quarrel of which this was made to appear the origin.
This might have been the defence of the woman, but the woman could
make no defence: it was a simple question between plaintiff and
defendant, in which she was not legally considered a party. Nay, it was at the
option of the lawyers on both sides, “in the direct spirit of duty to their
clients,” to conceal and suppress all such explanatory circumstances. On the
part of the defendant, it would be contrary to the etiquette of gentlemanlike
defence to cast aspersions on the husband, which, though their proof might
lessen the amount of damages so as to preclude a divorce,*must leave the question of guilty or not guilty, of the sin
imputed, precisely in the same condition as before: while on the part of the
plaintiff it would be obviously absurd, (since the success of his case, and the
amount of damages, depend on the proof of injury done him by the breaking up of
a happy home, and the corruption of a beloved and valued wife,) to permit it to
appear that quarrels and separations had already

* If the damages are
under forty shillings, though the verdict be for the plaintiff, he can
obtain no divorce; and this may be the case where gross misconduct is proved
against the husband, or where the woman is proved to be of such loose and
profligate character that the loss of her affection and society cannot be
supposed to call for damages.

page: 81 taken
place. Between these two interests of plaintiff and defendant, therefore, the
woman’s character is left to take its chance; the one interest being directly
opposed to hers, the other completely independent of it. The trial was conducted
according to these usual rules, and the customary spirit of duty to clients. The
plaintiff was represented as a fondly attached and injured husband, the
defendant as a treacherous friend and profligate seducer; nor was there anything
peculiar in the affair, except the disreputable class of witnesses employed, a
more than ordinary coarseness in the details of the evidence, a total omission
and dead silence respecting the three last years during which the intimacy had
subsisted, (which would have forced them to call witnesses known to be
favorable,) and a very industrious attempt to blacken the lady’s character, to a
degree which, had the description been correct, would certainly have made her no
great loss to any husband, nor a subject for ‘damages’ in any court.

All having been said that could be said on the part of the plaintiff, and all his
witnesses examined; and the other side having been heard, merely in defence and
denial of the charge, without calling any witnesses at all; the jury, without
retiring to consider their verdict, gave it for the defendant; on the sole
ground of the incredibility and contradiction of the evidence offered. The
defendant added a solemn declaration of the falsehood and groundlessness of the
charge, and the enquiry ended.

page: 82

Lord Wynford and Dr. Lushington then met to arrange terms of separation between
Mr. and Mrs. Norton; but Lord Wynford refusing to include the children in that
arrangement, and Mrs. Norton persisting in her refusal to come to any
arrangement which did not include them, the negotiations were
broken off. They were renewed, broken off; renewed, and broken off again, by
different parties, but always on the same ground. At length Mr. Norton proved
his own opinion as to the truth of any slander brought forward against his wife,
by doing precisely what he had done in the two former instances—he requested her
to return to her home; there to resume the position of wife and
mother, instead of struggling to obtain partial intercourse with her children
elsewhere. There were difficulties and delays; but Mrs. Norton ultimately
consented to this arrangement, her husband making, both to her and various
friends, written and verbal assurances that the trial took place against his
judgment, against his will, at the instigation, and through the
interference of others. The intended reconciliation did not however
take place, having been frustrated by the efforts of a member of Mr. Norton’s
family, then residing with him; and the children, who had been chiefly with
their mother while the negotiation was pending, were once more, (without a word
of explanation or warning, without any previous knowledge on the part of the
mother that it would be so,) suddenly removed from their father’s house, and
delivered up
page: 83 to his brother; after which, to
preclude the possibility of communication with their mother, they were sent to
Mr. Norton’s eldest sister in Scotland. Arrangements for a separation were now
renewed, with a threat that if Mrs. Norton did not submit to them, without
stipulation respecting her children, she should be advertised in the
public papers; which was accordingly done. Such an advertisement being in
reality of no legal effect, but merely an insult and annoyance, Mr.
Norton again proposed to negociate; and his wife having become well aware of the
hopeless struggle she was carrying on, expressed her willingness to submit the
whole matter, including the question of access to her children,) to any referees
who might be appointed. Two gentlemen of high character in the legal profession,
undertook the arrangement; and both the disputing parties bound themselves to
abide by the result. The amount of income and access was agreed between the
arbitrators, and the children recalled from Scotland, to be placed with their
mother for a time: when Mr. Norton, considering the terms too favourable to his
wife, suddenly broke off the negociation: refused to be bound by his written
promise to abide the result; quarrelled with his referee; and cancelled the
recall of his children, who remained in the custody of his eldest sister as
before.

A fresh advertisement in all the public papers, repeated day after day for more
than a fortnight, was the next step resolved upon by Mr. Norton; by which
page: 84 he made it appear that his wife
was the party who resisted all arrangement; instead of the fact being that he
could get no other gentleman to countenance the arrangements he
chose to make for her, or to admit the justice of his proceedings; and that on
this account only, no terms of separation could be drawn
up.*

Pending these different steps, Mrs. Norton, on her part, endeavoured to put her
threat into execution, of seeking a legal separation on the ground of cruelty,
&c. supporting it by a statement of events previous to the withdrawal of her
children. But she was made aware of a new feature in the law, namely, that as
there had been condonation—as she had

* In the pretended Review, allusion is
made to an action brought against this gentleman by one of his wife’s
creditors, and the speech of his counsel is quoted, asserting that it was
the lady’s fault this action was brought; and that the object
was “to ruin Mr. N. and drive him out of the country.” The lady could make
no answer, for (as in a more important case) she was no party to the cause;
and as it would appear by recent explanations, that one of the privileges of
the legal profession is to be able professionally to assert
that which is untrue with impunity, the boldness and ingenuity with which
the clever advocate made the aggriever appear to be the aggrieved, is
probably deserving of professional praise. But the simple
fact, (to which the “Reviewer” preferred the legal
fiction,) is, as I have already shewn, that Mr. Norton
having refused to submit to any opinion as to what ought to be
his conduct to his wife; and having preferred threats and advertisements to
the usual and decent course adopted by persons in his rank of life, left no
other course open to those who had given the lady credit, than to attempt to
recover from him the debts he did not choose to enable
her to pay.

page: 85
forgiven those acts of which she complained, and consented, in spite of them, to
return to her husband’s house, she could have no legal remedy afterwards. She
endeavoured with equal ill‐success to obtain legal interference, either for the
restoration of her children, or for compelling the assignment of some cause for
the cruelty of withholding them; more especially as the custody was
not with the father, but with different members of his family,
to whom he himself, verbally and in writing, attributed the infliction of that
public trial, and the refusal of proper terms of access; and to whose hands,
therefore, it was a double misery to see her children confided, since she was
thus compelled to yield them, not to their father, their other
parent, and natural friend and guardian, but to those whom she had every reason
justly to consider as her most bitter personal foes; to those by whom she had
been falsely defamed; by whom her husband had, according to his own shewing,
been driven onwards when he would fain have stopped; and by whom, finally, her
return to his roof, and the consequent enjoyment of her children’s society, had
been prevented.

It was after this unsuccessful struggle that Mrs. Norton was introduced to
Serjeant Talfourd, (with whom she had no previous acquaintance); not, as it is
falsely asserted, with a view to the creation of the measure with
which her name has been cunningly connected, but on the contrary, after being
made aware that the learned serjeant having been counsel
page: 86 in support of the law against Mrs.
Greenhill, had taken a deep interest in the subject, and was about to
bring it under the notice of Parliament. Mrs. Norton’s anxiety for the success
of that attempt it would be absurd to dispute, nor do I suppose she would
herself dispute so natural and inevitable a result of the circumstances in which
she was placed. But she did not stand alone in the expression of such anxiety;
many, very many letters were received by Serjeant Talfourd, after his intention
became public, from other ladies utterly unknown to him; authorizing him to
state the facts of their living bereavement to the House, and explaining the
circumstances under which they suffered. The expression of anxiety in all these
cases was the result of the Bill of Infant Custody being
contemplated, not the cause; and it is as natural that all such
women as have suffered for the want of such a measure, should expect their
several statements to add to the impression of its being required, as it is
unnatural and ridiculous to suppose that on a single ex‐parte statement, a man
of Serjeant Talfourd’s high and honorable feeling would undertake to
cheat the House of Commons into changing an important law; even
were his influence in the House of such a miraculous nature that he could
blind that great body of men, that mass of sons, husbands, and
fathers, not only to his motives in bringing forward this measure, but to the
injustice of the measure itself; (which is the very strange compliment paid him
by the inventors of this folly).

page: 87

So much I have said for the truth’s sake, and in answer to an imputation, which,
in spite of its ridiculous nature, is, I perceive, gravely adopted by
intelligent and well meaning persons. * And
yet I would respectfully ask your Lordship, I would ask those who may happen to
read this published letter, what there is in the circumstances of Mrs. Norton’s
case, not only to take away her title to redress, but to form a
ground to call upon Members to refuse a measure of redress to all the females in
Great Britain for fear this lady should benefit by it, and on the supposition
that it was intended she should benefit by it? In the outline of
her case, as I have given it, there is nothing overcharged; I have not appealed
for sympathy by dwelling on particulars of sorrow and endurance; I have
abstained as much as possible from accusation of others, my object being merely
explanation and defence, and my interest in the matter not being to obtain pity
for Mrs. Norton, but a clear understanding of one of the grounds on which the
opponents of Serjeant Talfourd’s Bill have chosen to make their stand. Is there
anything in that outline, brief and dry as it is, (addressing itself to
unprejudiced opinion, and not to the passions or feelings)

* Not only in the
Atlas, and other papers, conducted with
talent and moderation; but in a pamphlet by R. Mence, Esq., lately
published, and written in direct and earnest support of some
measure of this sort; this absurdity is adopted and alluded to. So much for
leaving the folly and bitterness of a falsehood to wreck itself! So much for
the non‐necessity of contradiction!

page: 88
which can justify the tone of attack which has been adopted? Is it justified
because the bereavement of the children was followed by a public accusation; not
intended, not planned, not thought of, at the time they were taken away? That
would be a dangerous doctrine, for it involves the assertion that a man has only
to commit a second injustice in order to justify a first; that a husband has
only to be persuaded into publicly defaming his wife (no matter with what
positive success), in order to obtain impunity for all the past and all the
future suffering with which her life may be visited. The truth of that public
defamation was denied by the verdict of an English jury, by the solemn
declaration of the accused, and last, not least, by the husband himself; he who
best knew the circumstances which led to that trial; he, who having been
plaintiff in the action brought, was most thoroughly acquainted with each
separate item of evidence, and the value of that evidence; he who
finally set at rest the question of his belief in the truth of the
coarse accusations, which made him out an injured and betrayed husband, by
requesting his wife to return to his home and his affections, and by excusing to
her the infliction of that great and undeserved disgrace, on the plea of
temporary irritation, worked to frenzy by the interference of others.

What answer will those who attempt to make a handle of Mrs. Norton’s case against
the Infant Custody Bill give to this? Will they say that the oath
page: 89 of the accused, and the admission of the husband, go
for nothing, and that the decision of the jury merely proves that twelve foolish
gentlemen came to a wrong conclusion; or, that these twelve gentlemen falsified
the law, and braved the conviction of their consciences, in order to gratify
Mrs. Norton, as Serjeant Talfourd is supposed to have intended to do?

The verdict of an English jury, if not an unerring means (as no human means can
be), is at least an accepted means of deciding the question of “guilty or not
guilty.” Under the shelter of such acquittal, the poor man is discharged from
prison, and goes home to rejoice with humble friends, and to resume that
enjoyment of social rights and social privileges which has been interrupted by a
false accusation. Under the shelter of such acquittal, the defendant between
whom and Mrs Norton’s husband her character was tried, stands free from the
charge brought against him of having seduced a woman young enough to be his
daughter, under the guise of friendship and patronage to her husband; enjoys the
highest place in the councils of this kingdom; and sways the helm of state,
distinguished by a peculiar degree of favour from royalty; insomuch that it
would almost seem as if he combined in his own person the offices of guardian to
an orphan, and prime minister to a beloved sovereign. This is the position of
the man, involved in that charge, absolved by that acquittal: on
what principle of equality of justice or common reason, do the opponents of
the
page: 90 Custody Bill undertake to consider the
position of the woman involved in the same charge,
absolved by the same acquittal, as so degraded that the very idea of her case
having been considered in the promotion of this measure, is to be looked upon in
the light of an imputation against the promoter? that the simple fact of her
maternal interest in the success of the measure, is to be an argument with rabid
scribblers for throwing it out altogether?

Away with the mean hypocrisy, the childish folly, the illiberal anger of little
minds, which would justify an opposition on such paltry grounds. If it be fit,
just, and expedient, that this Bill, or a Bill of this nature,
should be brought in to improve the present law, no cavilling
at the motives, or invention or conjecture of the motives, which
originally caused the attempt to be made, should be brought to prevent its
succeeding; if it be not fit, just, or expedient that such a
measure should be passed, it must be easy for those who are convinced of its
unfitness and inexpediency to find some argument strong enough to crush it,
without seeking to crush at the same time, by unjust vituperation, a woman
already in sorrow and distress. The question of the propriety and necessity of
the ALTERATION OF THE LAW, is the question the House has
to consider, and not the paltry and ridiculous doubt whether Mrs Norton used her
woman’s tears, and her woman’s arguments, to increase Serjeant Talfourd’s
acquired impression, that there ought to be vested in the courts a peculiar
page: 91 power of protection to meet certain cases,
which power at present does not exist.

The author of the article in the British and Foreign Review has earnestly
endeavoured (as a second chance of creating a prejudice) to connect
the ill‐advised public attempts on the part of a few women, to assert their
“equality” with men; and the strange and laughable political meetings
(sanctioned by a chair woman), which have taken place in one or two
instances, with the effort to remedy the injustice of the law of Custody: and,
in order to perfect the chain of his argument, it is impudently, most impudently
asserted, in the title page of the review, that an anonymous article, entitled
“An Outline of the Wrongs of Women,” (which article this author proceeds to
criticise in the grossest and most bitter terms,) is the production of Mrs
Norton; and her falsely assumed authorship of this paper is connected with, and
added to, her other crime of being interested in the success of Serjeant
Talfourd’s Bill, till the reviewer has scarcely terms to express the degree of
his abhorrence and indignation. Now, it is certain that every man has a right to
form what opinion he pleases, and that the expression of those opinions, in
coarse and violent language, or the reverse, is merely a matter of taste, and
entirely at the option of the person arguing. But no man has a right first to
invent a direct and positive falsehood of another, and then ground upon
that falsehood arguments to his or her disadvantage. To the furious
remarks made
page: 92 on the article asserted to be by
Mrs. Norton, and publicly disavowed by her, I am happy to have it in my power to
make the following very simple reply:—

“Messrs. Saunders and Otley present their compliments to Mr. Pearce
Stevenson, and have no hesitation in supplying him with their direct,
positive, and unqualified assurance, that Mrs. Norton was
NOTthe author of the article entitled ‘An Outline of
the Grievance of Women,’ published by them in the May Number of the
‘Metropolitan;’ and that the assertion referred to, in the British and
Foreign Review, is consequently, to their knowledge, WHOLLY DESTITUTE OF FOUNDATION.”“Conduit Street, Dec. 3, 1838.”

As the want of modesty and virtue is the worst accusation that can be made
against a woman, so perhaps the want of integrity is the worst accusation that
can be made against a man. Now, suppose that the author of this bitter and
ill‐judged article was on the point of benefiting by the services of a friend,
or the kindness of a powerful patron, and that some person, who had a direct
interest in preventing his success, was to say to that friend, or patron, “I
give you my most strenuous and earnest advice, to have nothing to do with this
man; he is destitute of common honesty; you cannot rely on a word he says. I can
of my own knowledge assert that he converted into cash, for the settlement of a
gambling debt, some valuable jewels held in trust for the orphan child of a
friend, and it is notorious that he cheated his own brother out of a
considerable sum; besides which, he is a turbulent and unprin‐
page: 93 cipled fellow, and encouraged the riots at such a
place merely out of spite to a person who has extensive cotton mills in that
neighbourhood.” If this were said, and particulars given so as to make the
slander more plausible and more difficult of contradiction, and the report at
length reached the accused, would he not exclaim, with very natural indignation,
“’Good God! if it is this man’s interest to oppose me, let him at least do so
honestly; do not let him attribute to me actions of which I am incapable; do not
let him invent for me motives which I scorn; it is a monstrous baseness and
cowardice to attempt, by such means as these, to counteract my wishes, and to
rob me of the good will of my friend and patron; it is a boldness and depth of
malice for which I was not prepared.” This, or something like it, would be the
probable language of this man, under such circumstances; yet he has not feared
to inflict on a woman, that which he would have considered a gross
hardship if inflicted on himself. Nor is it any justification, in such a case,
to say, “I did not invent the report; I heard and adopted it:” the
man who chooses to print and publish slanders, and to ground upon them vehement
abuse, is not to content himself with the chance of their not being false; he is
to be certain that they are true.

With respect to the arguments of this author on the Custody Bill itself, (apart
from the personal attacks which appear to have been his main object,) it is
scarcely necessary to notice them; for, if here
page: 94
and there a grain of corn be found in the heap of chaff, a spark of
direct reasoning among the mass of confused and exaggerated
abuse, it has already been dealt with in these pages. His great argument is the
inferiority of woman, of whom he grandiloquently observes that she is
“created to bear other mortal beings, and so to be saved, by
performing her part as mother in the great regeneration, all which she receives
by God’s will through her husband, her head, the young Christian’s father.” He
also speaks of the permission to live with her children under any
circumstances, not as a natural or admissible claim, but as her “divine and
blessed reward.” Much cant and folly, bordering on blasphemy, is backed by such
texts from St. Paul as can be twisted to suit the purpose; omitting, of course,
the Apostle’s beautiful and simple charge, “Husbands love your wives, and
be not bitter against them.” Milton is also continually
referred to, somewhat rashly, since Milton’s harshness, in his domestic circle,
is a matter of historical notoriety. (Nevertheless, of the argument of
inferiority I have not the slightest wish to deprive this author, since, as I
have already observed, submission to individual authority does not imply
forfeiture of general protection, and women may be dutiful inferiors, without
being ill used slaves.) He is particularly eloquent on the subject of Perjury,
and the explanation of all the falsehoods which wicked wives will swear against
their excellent and abused husbands, and also narrate of their happy and
comfort‐
page: 95 able homes; never considering that
if their husbands were kind and excellent, and their homes happy,
there was no possible temptation to risk at once the reputation and the comfort
of their entire lives by leaving such home and husband, to perjure their own
souls, and bribe others to copy the crime. He is equally happy in his
observations on the chance of imprisonment for contempt, to be incurred by
fathers; in the course of which, he totally overlooks the startling fact that at
present imprisonment for contempt is the punishment of the
virtuous and blameless mother, only for desiring to be faithful to her children,
though her husband be faithless to her. But, indeed, the great peculiarity of
this writer is the complete one‐sidedness of his argument. To him the word
woman signifies a bad woman; he cannot conceive
any other case; he cannot form to himself any other idea. Whether he has never
lived in any but that class of women calculated to inspire these opinions; or
whether he has himself stood in the position of a deceived and deserted husband;
or whether he never sufficiently esteemed the sex to choose a companion from
amongst them “to bear moral beings,” and admit her inferiority, cannot be known;
for although he bravely calls upon Serjeant Talfourd by his name,
and Mrs. Norton by her name; and commands them to avow this, and
deny that, or connects them openly with such falsehoods and inventions as may
please him, yet he so far shows that he understands the value of the anonymous
character in some cases, by strictly preserving it himself.

page: 96

But whatever may be the cause of the tyrannical opinions held by
this unknown gentleman, or his motives for personally attacking Serjeant
Talfourd and Mrs. Norton, and endeavouring to connect the maternal sufferings of
the one, with the Parliamentary efforts of the other; it is obvious that the
opposition, which is grounded entirely on one view of a subject, and on false
and malignant representations, cannot be of much value. Indeed, it is scarcely
possible to believe, on a perusal of the article in question, and on a
consideration of its utter want of sound and temperate judgment, that such a
bombastic schoolboy’s exercise on a subject of public interest, can be the
production of a grown up human being, come to the full maturity of thought and
feeling.

Where was the mother of this man?—in her grave, or on this earth,
when he undertook to speak of the whole female sex, as of animals who required
caging and chaining?—of English wives and mothers as if they all desired to
forsake their homes—as if they all hated and rebelled against their husbands—as
if they only waited for some revolting watch‐word of liberty to give loose to
every wild and profligate feeling that stains our commingled nature? Did this
author never see that very usual and customary sight, a modest and affectionate
wife? Did he never see a woman watching the cradle of her sick child? Did he
never see a mother teaching her little one to pray? Did he never see the welcome
of a long absent son to his home, the embrace of the aged mother, the tears
page: 97 of the young sisters? Did he never see, hear,
or read any of the instances of devoted fondness and unswerving faith shewn by
women to their husbands, in danger, in temptation, in distress? Such instances
have abounded, and will continue to abound, though in an erring world. Such
pictures are, I thank God, no images of romance, but common everyday scenes from
English domestic life. Finally, did this anonymous railer never hear it said
(and that by his fellow men) in behalf of the gentle, faithful, affectionate
race he has maligned, that even among the worst and most degraded class of
women, among those whom early seduction or instinctive profligacy has reduced to
a life of habitual and mercenary sin; it is by no means uncommon to
find some strong preference and faith of the heart, capable of withstanding even
ill usage and brutality from its object; some link to better feeling, from the
very strength of “woman’s nature” preponderating over the revolting
circumstances of her lot; some narrow glimpse of a holier light, which runs like
a silver thread through the coarse and filthy texture of her degraded destiny?
It is said that such is the case, and I believe it. I believe that so far from
women being the devils incarnate supposed by this writer, over whom it requires
that all the mastery of man, all the unlimited power of the husband, and all the
severity of the law, should be exerted, in order to prevent them from plunging
into vicious excesses; so far from the gross abuse indulged in by the author of
that article, being deserved
page: 98 by the generality
of English wives and mothers; that there are many who never were
wives,—ruined creatures, whose names would be spoken with bitter scorn were not
a shield found in their very obscurity, who practice more faith, tenderness, and
affection towards the men who depend on them for those feelings, than some men
are apt to practise even towards those of the weaker sex who best deserve it at
their hands; those to whom they are bound by marriage; those whom they have made
a solemn vow at God’s altar to love and protect. However, there is no injustice
so great that it has not in its time found some supporters. Even
the Abolition of Slavery was long and strenuously combated, and that by persons
of far greater eloquence and talent than the gentleman employed to write in Mr.
Kemble’s review; though in this they resembled him, that they
also undertook to twist sentences from the Scriptures into an
apparent justification of inhuman cruelty, and to prove that slavery should be
encouraged (or at least permitted), by reference to Holy Writ.

That there should be, therefore, an opposition to the attempt to introduce a
measure of the nature of the Infant Custody Bill, is not surprising; and it is
perhaps on the whole satisfactory to find that the only publication against it
since its introduction, consists of an attack upon the individuals supposed to
be interested, rounded on several distinct misrepresentations, and some vague
abuse of the female sex generally.

In the House of Commons, Serjeant Talfourd’s
page: 99
Bill was passed by a majority of four to one. To assume, as the author of this
article does, that this great majority gave their votes, some in utter
ignorance, others without due consideration of the subject, and many from
private interest, is not very courteous, since it divides that great body of the
chosen representatives of the people into two rather unpopular classes, fools
and liars; and is, besides, somewhat dangerous, since it involves the assumption
that it is not the habit of the members of that House to consider
the measures submitted to them, but merely to pass them, as
ignorance, caprice, or carelessness may suggest. I have however sanguine hopes,
that in spite of the enlightenment of the two Houses by the author of these
opinions; in spite of the additional publicity obtained for the article by the
cowardly abuse which wrung an answer from the weakest of the parties attacked,
though Serjeant Talfourd himself scorned to notice it; in spite of the efforts,
of more intelligent if not juster‐minded men, “to make the worse appear the
better reason,”—the husbands, sons, and fathers in our free Parliament will
still be found ready to listen to and relieve (as far as lies
in their power) the complaint of the oppressed; and that whatever changes we may
see in these unstable times, we shall at least not see so great a
change in the character of Englishmen, as will make them encouragers of
ferocity, brutality, and cruelty, exercised by the strong against the weak. We
read in Commodore Byron’s account of his shipwreck, a narrative of the cacique,
or chief, who, when his child had slightly offended him,
page: 100 dashed it to the earth, where it remained senseless
and bleeding. We read in Washington Irving, of the American Indian who struck
down his favourite wife, killing her at a single blow, and then sate in stupid
despair by the corpse for three days. We read these and other wild stories, and
exclaim “Such are the acts of the savage!” But I fear, if all were told, we
might find savages more cruel in our own civilized country. Life is
indeed a precious thing, even when made bitter by sorrow, or helpless from
infirmity of disease; we cling to it, we struggle for it; we pray to be shielded
from “murder and sudden death;” we have a morbid and instinctive horror of the
man who lays violent hands on a fellow‐creature; yet it may be doubted whether
there is not more mercy in the one passionate blow of the ungoverned savage,
than in the pain of years, doggedly inflicted and wearily dragged
on. It may be doubted whether it were not better that a man should have power to
stab his wife to the heart, than power to poison, the peace of her days and the
rest of her nights, by the long fever of perpetual anxiety, perpetual pining,
and ever‐during regret.

It is now upwards of twenty years since a case occurred, which was, I believe,
decided in Judge’s chambers, and never having been before the public, has not
been recorded; but which shews how much may be done and suffered in a Christian
country without any outcry being raised; without any note being taken to mark
the “savage” act as it fleeted by; without any arm being interposed between the
tyrant and his
page: 101 victim. The husband in this
case was of known profligate habits; the wife was free from the very shadow of
suspicion: he became weary of domestic ties and involved in connections of a
very different natal; and, after behaving with the greatest violence and
cruelty, he resolved to get rid of his wife altogether.

For this purpose he proposed to her to pay a visit to her mother, and without any
previous warning of his intention, left her; and abandoned himself to the
pursuits which best suited him. At the time his wife was thus unceremoniously
put away, she was about to become the mother of a third child; two sons being
already the offspring of this ill‐fated marriage: the husband not only claimed
and obtained the possession of his two boys, but he took away the child
born after his desertion of his wife; and which, being a female
infant, she especially desired to keep. This child died; and to that degree was
inhumanity extended, that the first intelligence of its decease reached the
unhappy mother through the medium of the public newspapers. The
boys, after being a while in the custody of the father and his mistress, and
sharing his regard with this woman’s illegitimate children, were sent to France,
to a school where they actually had not enough to eat, and where, from the rigid
economy practised towards them, by the father who preferred spending his money
on vicious pleasures, they also suffered from other discomforts, deficiency of
clothing, &c. At first the mother contrived to correspond with them; but
this was discovered, and not only forbidden, but these boys wrote by
direction,
page: 102 and under dictation of their
father, letters to their innocent and miserable mother, announcing their
determination to write no more, in terms so gross, so cruel, so full of insult,
and falsehood, that it is painful to think a child could have been brought, by
any means, to address them to a parent.

At length, the wife, who had endured poverty, inconvenience, and tyranny, with a
forbearance which would have been weakness in any but a mother, hoping against
hope to regain her children, and fearing to exasperate the savage who kept them:
sued successfully for alimony, which was awarded to her in proportion to her
husband’s income. No sooner was this done, than the husband informed her that as
he was compelled to pay her this annuity, he would no longer be burdened with
the support of his sons, for whom she might provide out of the alimony she had
obtained. After eight or nine years of enforced separation, her sons were
accordingly restored to her at an age when the cleverest and most anxious mother
must find her guidance and guardianship utterly unequal to cope with the
difficulties of a young man’s outset in life, and with an income utterly
inadequate to supply even their reasonable expences. They had endured in the
meanwhile, during their joyless and neglected infancy, every privation and
sorrow which can be felt at that age; and every blighting and warping effect on
the heart and understanding, which their unnatural position, (orphans though
with parents living; friendless creatures though with a large circle of
connections;) could be supposed to
page: 103 entail.
This is one of the many less public instances of the effect of
the present law of Infant Custody. It is one in which your Lordship’s memory
will probably supply the name, which I have at this time no opportunity of
requesting permission to insert. It is one in which the wife’s character was
unimpeached even by her husband, (to whom it never occurred to justify tyranny
by after defamation;) it is one in which the parties are both of noble English
families of rank; consequently had redress been POSSIBLE,
the rich and powerful connections of the lady would have assisted her in
obtaining it. It is one in which the unsuccessful struggle of an injured wife
and bereaved mother made a sensation at the time, but which has passed away into
the obscurity which covers all private wrong, and private suffering, and more
especially the sufferings and the wrongs of women. But it is also one which
false reasoning and vain plausibilities cannot touch; which without any
exaggeration or romantic colouring, stands out in simple and severe relief, a
case of gross cruelty most savagely inflicted; and which calls on all honest and
humane minds, for sympathy and indignation.

It is with reference to this, and other cases, that I would press on your
Lordship’s consideration, one plea in favour of a Measure of
Protection, which, though very obvious, has I think, been little noticed. I mean
the fact, that the custody of the father is scarcely ever a bonà fide custody on his part, but a mere exertion
of authority to wrest the child from the mother, and to place it in the hands of
some other
page: 104 person; which person, being chosen
on the plea of irresponsible power, may or may not be a fit and proper companion
or guardian for the child; may or may not be as well, or better able to educate
it, than the mother: for the father is in no way bound to shew that it is for
the advantage or well‐being of the child that it is so placed.

It is the language of the law, (and it is also the language of the opponents of
any alteration in the law) to speak of the father’s custody as
real, and the interference proposed, as being inconvenient and
impracticable, precisely in proportion as it is an interference between
him and the mother; but in all the cases on record, the father’s
custody is merely nominal, and from the nature of circumstances, can scarcely be
otherwise with young infants; consequently the interference is between the
mother and a stranger; and the person to whom the mother does
in fact surrender her child, is not the father, but his delegate;
too often the very individual who has strained every nerve to widen the breach
between her and her husband!

In the case of De Manneville, where the father took away the infant at the
breast, in order to compel a disposition of property in his favour, he was of
course obliged to give his child to a nurse. In the case of McClellan, where the
diseased and dying child was parted from its mother, it was given to a
governess; in the case of Ball, where the wife had divorced her husband by
reason of his adultery, and was yet obliged to relinquish her young
daughter, the girl
page: 105 was left at first with a
female servant of all work, and afterwards sent privately, by the father, to a
school. In the odious case of Skinner, the father being in prison for debt, gave
the child he wrested from his wife, to the woman with whom he cohabited. In the
case of Mrs. Greenhill, the father stated it to be his intention to place his
three little girls with his mother; with whom his wife had been on bad terms;
with whom he himself, had been at law for years; who had previously
refused to notice the children; and who, by the exertion of her fierce and
uncompromising spirit, prevented her son yielding to any arrangement with his
injured wife, when an endeavour was made to that effect. In Mrs. Norton’s case,
which was supposed to have so much weight with the promoter of the Bill, the
children were first sent to a lady almost a stranger to the wife, but with whom
the husband was intimate; afterwards to their paternal uncle, Lord Grantley, who
had never previously noticed their existence, having been on bad terms with his
brother; and finally to their paternal aunt, Lady Menzies, who, from the terms
she had been on with her sister‐in‐law, had never even seen two of the children,
till they were taken from their mother. I have already shewn that in another
instance the victims of this nominal custody were sent into a
foreign country, to the care of utter strangers, and out of the way of all
friendly protection: in no one of the cases given, has the real
custody been with the father; in no one case has it been chosen with any view to
the advantage of the child; but in almost all with an
page: 106 express intention of wounding and grieving the mother
to the uttermost, and of effectually preventing her obtaining any communication
with her offspring, by placing them in the hands of those least likely to shew
her any merely or indulgence.

It is a gross thing that a father should leave his children with common
hirelings, or persons indifferent to their welfare, and reside himself in a
distant part of the country; and yet prevent the mother from having any
opportunity of seeing or hearing of them. It is a gross thing that a woman
should, as in one of the cases referred to, only learn her child’s death through
the medium of a newspaper; and those who support the “right of Custody” do not
sufficiently consider that it involves this right and power of
doggedly denying all intelligence of the infant. Men whose
profession or pursuits have required a residence in the East or West Indies, or
in any other of the distant spots in which the sons of our thickly peopled
country labour for a fortune, will comprehend, without the aid of imagery, how
strong, under such circumstances, is the desire
to
to to
hear of parted friends, how welcome the letters and the news from the
land of their birth. In a far more bitter exile, the exile of a mother from the
infants she watched by night and by day, the deprivation of such intelligence
may well be supposed to cause unutterable pain. The ship that brings “no news
from England,” to a man in the situation we have described, leaves, even in the
sting of present disappointment, a hope for the future; and he is
page: 107 enabled (probably compelled) to turn his
attention to surrounding matters connected with his profession or employment.
The woman has no future hope to cheer her anxiety; and, as all the
occupations of female life arise out of, and are dependent on, the affections,
she has no compulsory employment to engage and relieve her mind.

What strange and insupportable tyranny would it be thought, if the law permitted
a father, or an elder son, to exile a child or brother, and to deny
and cut off all communication with the natural ties of their home! Yet this is,
in fact, the power granted in this instance, and exercised by the husband over
the wife. The law of Scripture, and of social life, alike uphold
filial dependence and obedience; there is an express
commandment to the purpose; notwithstanding which, since the most barbarous
ages, it was never understood that the child is entirely at the disposal of the
father, without reference to any protection from the State. Why,
then, should the wife be entirely at the mercy of her husband in a matter
involving her privileges as a rational and sentient being? We are apt to treat
with contempt and surprise the customs of other nations in the matter of
marriage and laws for women; we consider it an infringement of natural rights,
that a young girl should be given away by her parents or superiors to a man she
never saw, without liberty of choice or refusal; we protest against the
doctrines of the Turks, that women have no souls and are but the toys of
passion. Yet what a ludicrous contradiction our own law implies, when
page: 108 it gives the young girl a power of choice, and
considers the mother a cypher. The condition of mother is far more
important than that of a young unmarried girl. She is under God responsible for
the souls and bodies of the new generation confided to her care; and the woman
who is mother to the children of a profligate and tyrannical husband, is bound
by her duty, even if she were not moved by the strong instinct of
her own heart, to struggle against the seizure of her infants. It is not
her happiness alone that is involved, theirs is
also at stake; their comfort, their well‐being, perhaps the tenor of their whole
future lives, depend on their not being legally permitted to be made the
innocent victims of their father’s caprice. To refuse the protection which would
enable a blameless wife to continue her care of infants in such a case, merely
on the plea that the law will not interfere with the husband, what is it but to
deny the position of the woman as a rational and accountable creature? What is
it but to adopt in a degree the Turkish creed, and consider her merely as the
toy of an hour? What is it but to say, “In the bloom of your beauty you were
given to belong to this man; his satiated fancy has wandered from you to
another; there is no help for it; you are nothing of yourself; the children
borne by you while his attachment lasted, are of course his; the law does not
acknowledge your separate claim or share in them; they neither belong to you,
nor you to them.”

It is an old and true saying, “Oh, Liberty, how
page: 109
many crimes are committed in thy name!” and it might be thus paraphrased, “Oh,
Expediency, how much injustice is upheld in thy name!” for who could believe
that honest and honourable men would gravely argue that it is a fit state of the
law, and one which had better not be altered, which permits a cruel or
adulterous husband to take his children from the mother who bore and reared
them, and give them to any stranger he pleases, himself the only judge under
what circumstances this cruelty shall be inflicted!—his own bad and revengeful
passions the only guide to a selection of the guardianship which is to influence
the destiny of his child! Who could believe that, after it was shown what this
admission of nominal custody had led to, it would be gravely argued
that it would be a pity to disturb the general rule which gave all fathers power
to do the like? Who could believe that, because it is the duty of a wife to show
rational and proper submission to her husband, it would therefore be gravely
argued that she has no more claim to the children she may have by him, than the
female of some dumb animal to the calves, foals, or puppies bred for their
owner? Who could believe that the same law, which refuses to assist
the father to regain possession of his son at the age of fourteen, will
authorize the seizure from the mother (by any stratagem or violence) of an
infant under that age, for the purpose of being delivered to one who perhaps
entertains aversion both to mother and child; it may be to one whose inter‐
page: 110 est it is that the child should not exist?
Who could believe that, because there are loose profligate wives in the world,
as well as loose profligate husbands, it would be gravely argued that
no woman, however clear the case of ill‐usage, however
monstrous the circumstances of wrong, should have any chance of redress, by
being made an exception from this bitter law of her country? If only six
recorded instances in thirty years, were brought forward against the officers of
different regiments, proving that gross tyranny and injustice, and open torture
had been inflicted upon the men under their command; all shewing that no check
existed to prevent such abuse of power; can any one doubt that the legislature
would provide a check, and fence it round with the best securities they could,
without hesitation or delay, without once referring to the small number of cases
in which oppression had taken place? All legislation is for
individual exceptions; and as no scale has hitherto been fixed of the number of
individual exceptions necessary, before a measure of social protection shall be
put in force, we are to presume that the English law does not knowingly
and willingly permit even a single case of injustice and
wrong to the subject. It has been suggested to me, that it would be very absurd reasoning
.
(and indeed I think it would), if a man were to write from a newly
established colony, “We have, as yet, comparatively few instances of theft; and
those of murder are still more rare; consequently our code contains no reference
to these two
page: 111 crimes, nor are penalties
attached to their commission.” So false, so strange, so perverted, does the
argument appear to me which would oppose the Custody Bill on the ground of the
rarity of the cases of oppression, that I can scarcely comprehend how it can be
admitted or entertained by intelligent minds.

Either let the English law discountenance and forbid separations by mutual
consent, or, permitting them, let some sort of protection be possible where the
woman has just cause of complaint. It cannot be for the advantage of the female
sex, that they should be taught that good conduct avails them nothing in a claim
of this nature; it cannot be for the advantage of the child, that a bad father
should be able to take it from a good mother, or prevent a good mother from
having access to it. The entire loneliness, too, in which the woman is thus
left, deprived at once of the most important and rational interest of her life,
must be anything but favourable to her future welldoing. If her marriage is
indissoluble because she has not misconducted herself, and yet the
offspring of the marriage is held to belong to the party who has
misconducted himself, would it not require the religious resignation of a martyr
to prevent a woman from reasoning thus within herself: “My marriage is made a
mockery of that holy tie, through no fault of mine; my children are taken from
me, though I have never done anything to deserve it; I am condemned by the law
to punishment without committing any crime, and I am
page: 112 viewed by society with harshness and distrust on
account of a position I cannot help. It would be almost better to have been
divorced from my husband, and to have become an object of
kindness an protection to one whose affection would have replaced the ties of
which I am so unnaturally bereaved, than to live in this perpetual loneliness;
perpetually insulted by opinions which at present I do not deserve.”

It cannot be doubted, that if it once comes to be clearly understood among women,
that the power of protection, which up to the present time they have ignorantly
appealed to, does not exist, and is refused by the legislature; the temptation
to divorce among those who are struggling to bear and forbear in an
unhappy home for their children’s sake, will be fearfully increased. There are,
thank God, many high and holy principles, besides the love of her children, to
prevent a woman sinning; but this affection is admitted, even by the opponents
of the Bill, to be a very principal check; and if, instead of allowing it full
force, by making a positive distinction between the woman who has deserved to
lose her children, and the woman who has not, the infant is held to be
completely at the husband’s disposal, or that of his mistress, friends, and
abettors; the woman who foresees an impending separation, and knows that she
must at all events be the only sufferer, will be terribly tempted, unless
guarded by very strict religious principle, to commit the cowardice of
endeavouring to escape great sorrow, by plunging into great re‐
page: 113 morse. In short, if separations by consent could be
lessened by such an understanding of the law, it would only be by the
frequent substitution of entire divorce for the divorce a mensa et thoro.

That such an understanding has not hitherto existed among women, I
have already shewn in discussing the ‘check” it was supposed to entail against
separations; that it has not existed universally, even among
lawyers, is also certain. Sir W. Follett and Serjeant Wilde (no
mean authorities in legal matters) entertained to the very last a doubt as to
the soundness of the decision in Mrs. Greenhill’s case: which case was, as we
have seen, decided by precedent and example from other instances of a like
nature, all following the opinion given by Lord Ellenborough in Rex v. de
Manneville. And this original case of precedent is very curious, inasmuch as it
contains within itself the double principle on which the courts
have acted, namely the direct assumption of power to interfere with the father,
combined with a non‐admission of the claims of the mother. For although the
Court of Chancery refused, as well as the Court of King’s Bench, to restore the
infant on the mother’s petition, an order was made restraining the
father from taking it out of the kingdom, and out of the jurisdiction of the
Court. As De Manneville was a Frenchman, (an emigrant) there could hardly be a
clearer or more decided interference than to say “you shall not take your child,
born in England, and a subject of England, to your native country.”
page: 114 And it is necessary to notice this, as it has been so
obstinately argued, (in spite of the instances which prove the contrary,) that
the paternal right is now, for the first time, to be attacked and interfered
with. The question has been, in all cases of disputed custody, “on what
principle do the Courts interfere?” And all the decisions which have been made,
did not, as it appears, clear up that question in the opinion of some lawyers.
Insomuch that the original title to Serjeant Talfourd’s measure ran thus: “A
Bill to declare and amend the laws relating to Infant Custody;” or,
to obtain first a clear understanding what actually was held to be
the law of the land on this point, and then remedy the defects (if any) which
should be found to exist in it. If the escaping from a portion of the ignorant
personal abuse lavished upon him, be a matter for the learned serjeant’s
consideration, it is a pity the title of the bill was ever changed; since it
appears the one afterwards decided on was not considered a whit more clear or
satisfactory; but on the contrary, was seized on by a certain class of his
opponents as a subject of quite as much discussion and vituperation as the
measure itself.

The understanding, then, of the Law of Infant Custody, has still to be made
general, whatever the eventual decision of our legislative assembly
may be as to the present attempt to alter it. Parliament is to
declare the law, which has been for years vainly struggling to
free itself from a mass of confusion and dispute; and if, after its form of
hideous injustice be
page: 115 clearly seen and defined,
it be only declared, and not amended; if the general understanding
throughout Great Britain is to be, that men may execute in the privacy of their
own houses such tyranny as they would not dare to inflict on the meanest of
their fellow‐subjects anywhere else; if it be declared that children, sent by
heaven as a blessing and bond of peace, are to be considered chiefly as a means
and instrument in the hand of the father to compel his wife to endure all things
meekly; if it be declared that the fair face of some smiling wanton shall not
only seduce a husband from his wife, but shall replace to her child the image of
his exiled mother, whose petition for redress is unheard:—IF this is to be the declaration of this law—why, we
can only wonder that such should be the decision of a Christian legislature in
the nineteenth century, and turn to Him ‘who heareth the cry of the oppressed;’
to Him, in whose bright world of promise and equal justice there is so much
necessity to believe, while we bow beneath the trials of this.

But, my Lord, I do not fear that such ever will be the understanding
promulgated by the legislature of this free country. I do not believe that
general and abject submission ever will be permitted to be enforced among women
by instances of individual cruelty, now that this law has (happily for them,)
been brought under the notice of Parliament. The Lower House responded eagerly
to the appeal made to common sense and common feeling, and passed the
page: 116 bill through all its three stages, with large and
still increasing majorities. In the Upper house it was checked at its very first
outset by a majority of two: the principal speakers being Lord
Brougham and Lord Wynford.

No one who has ever heard Lord Brougham speak, on any occasion, can fail to
perceive how completely the eloquence of the advocate and lawyer, the eloquence
at command, is his forte. Carried away by no real enthusiasm or
conviction himself, he does not produce it in others. His style of reasoning is
strong, accurate, and fluent; but even while we admit it to be so, we feel a
sort of inward consciousness that some juggler’s trick, the “hey presto!” of
some earthly magician, might so change the whole face of things, that all this
power might be brought to bear on the contrary side of the
argument. There is no orator who makes one understand so thoroughly the
full force of an anecdote narrated of one of his brethren of the long robe, who,
mistaking the tenor of his brief, argued with great skill and apparent warmth
the cause of his client’s adversary; but on being made aware of his error, said,
with admirable composure—“This, my lord, and gentlemen of the jury,
is what might be urged, and I have no doubt will be urged by the
counsel on the other side;”—and immediately proceeded to answer his own
objections, to destroy point by point the whole framework of his own oration,
and to build a directly contrary argument on the ruins of his own train of
reasoning. In
page: 117 a different way, but in an equal
degree, we are sensible that Lord Brougham could argue with the same facility
pro or con; and the effect of hearing him speak against a question in
which one is interested, does not so much resemble any approach to conviction,
as the restless and wistful anxiety of a man, who while his adversary’s lawyer
is making a clever address to the jury, wishes it had been possible to
neutralize the dangerous ingenuity of his efforts by retaining him on the other
side.

Those who heard the speech against Serjeant Talfourd’s Bill, will comprehend my
simile. It was impossible for both the discussing parties not to perceive how
well Lord Brougham could have reasoned on behalf of either; and it
was impossible for the party in favour of the Bill, not to wish, that his
somewhat unexpected opposition had been turned against the objectors instead of
themselves. When he enumerated one by one the instances of hardship and
injustice women endured under certain laws, and argued that
therefore (for the sake of uniformity,) they ought to be left
to bear likewise the instance under discussion; it was impossible to avoid
thinking how finely and warmly he could also have led the opposite argument,
viz.: Why, because there were certain unavoidable anomalies and imperfect
operations of law, we should not correct what can be corrected;
why, because it is not in the nature of things that the weak should be
equal with the strong, we should herefore encourage the strong
universally to smite
page: 118 and trample on the
feeble; why, because the inferior position of women entailed a degree of
difficulty and uncertainty in the laws made for their separate protection, we
should therefore leave them in one particular and grievous point without any
protection at all.

But “the pleadings” were opened on the contrary side.

Lord Wynford followed Lord Brougham, and expressed his decided opposition to the
Bill in terms of vehement bitterness; a bitterness probably not lessened (if he
shared the false impression that Serjeant Talfourd had been induced to bring
forward this measure chiefly to obtain redress for Mrs Norton,) by the
recollection of his own vain attempt as Mr Norton’s friend and referee, to
arrange terms excluding that lady from her children; or by the remembrance of
the public animadversions which his Lordship had to refute at the time, as to
the part erroneously supposed to have been taken by him in the prosecution of
that affair. It is apparently very easy to feel great humanity for one set of
mothers and not for another; to abhor the unnatural separation of near relatives
when it is expedient to raise a cry against the working of the New Poor Law, and
to defend that unnatural separation when it is expedient to oppose the Infant
Custody Bill. In the report of Lord Wynford’s speech on the first of these
subjects, nothing can exceed his abhorrence of the cruelty of these separations;
in the report of Lord Wynford’s
page: 119 speech of the
31st July, 1838, nothing can exceed the vehemence of his defence of these
separations. On which occasion was he most thoroughly in earnest, when he
supported two conflicting principles? Or did he support them alternately with
equal earnestness, believing it to be a hardship on the labourer’s wife and the
aged pauper to be parted from their offspring, but thinking it no hardship at
all on the mother, whose rank in life, and exemption from toil, left her no
other real and fit occupation but the education of her children?
Upholding on the one hand the doctrine that general rules, general prohibitions,
and general restrictions, were of such great and manifest importance, that their
necessity overbore all consideration of individual suffering and cruel
injustice; and denying, on the other, that any valid or proper excuse
could be found in the plea that instances must arise of
occasional hardship in the attempt to obey to the letter this new law;—a law not
prospective in any of its provisions, but suddenly subversive of ancient
custom, which, dear to us all, is doubly dear to the poor and
ignorant, inasmuch as they are totally unable to calculate the benefits
conferred by change on the future, while they are unfortunately but too well
able, from the scantiness of their personal comforts, to perceive that part of
its Temporary Effect which lessens their enjoyment of the Present.

When we see Lord Brougham employing his skilful and laborious pleading in defence
of the liberties and social rights of the black population; and Lord
page: 120 Wynford remonstrating with his customary indignant
energy against the presumed defects of the New Poor Law; while
both, in their anxiety for the cause to be advanced, apparently
think no more of the numerous and conflicting difficulties which surround each
of these topics, than they would of the roots and shrubs which it might be
necessary to clear away, to turn a tract of wild country into arable land; we
hear with surprise the one advocating the oppression of bad men over their
unoffending wives, and the other upholding as a fit legislative enactment the
parting of a guiltless mother from her helpless child: the last, on the plea
that it would be madness so to relax the law as to admit of the indulgence
of exceptions; the first, by the argument that because tyranny cannot
be prevented in some instances, it should not be resisted in
any. This does certainly seem a contrasting species of
eloquence; a contradictory state of principles in a man’s mind; but we know that
however strictly a ‘general rule’ may be observed in the laws
relating to women, it is frequently found to be swerved from, in the political
opinions of men. Without therefore attempting to meet a certain class of
objectors on their own shabby and childish ground; without retorting their
imputation of motives for bringing forward certain measures, by equally
conjectural motives for opposition of those measures, I am content to believe,
first, that a man may execrate oppression when endured by one class of his
fellow creatures, and honestly defend it when endured by another; and secondly,
that a man may perceive acts
page: 121 to be grossly
cruel under one set of circumstances, which, presented to him in a different
view, appear perfectly justifiable.

In a very thin attendance of the House of Lords, the Bill which had passed the
Commons, was lost (by a majority of two only) upon the first
discussion; if that can be called a discussion which merely consisted of one
long speech in opposition from Lord Brougham, and one from Lord Wynford. Out of
the small minority, Lord Lyndhurst, Lord Holland, and the Duke of Sutherland
signed a protest against the rejection of the measure; and it is probable that
had the Bill, by passing the first reading, obtained more general attention
among the Peers, the result would have been as favourable as in the Lower House.
But there is more disposition in the Upper House to divide the questions which
present themselves for consideration into distinct classes, and to consider
those classes as more especially concerning particular sub‐divisions of their
great body; and though this is not strictly enforced as a “general rule” (the
Bishops, for instance, being by no means acknowledged as umpires in all the
Church questions), yet there was, on the occasion of the Infant Custody Bill, a
very strong desire to “leave it all to the Law‐Lords.” In the House
of Commons there is a great deal of energy and enthusiasm to spare, a great deal
of young warm blood, easily roused by stories of oppression and wrong, a great
many gentlemen willing and eager to speak on various subjects; and if not a
great deal of what may properly be called spare time, at least a
page: 122 great deal of time which they contrive to
spare. In the House of Lords there is little of all this. They are much more
cautious, and they are also much more indolent. They are men in the actual
enjoyment of hereditary rights, distinctions, and privileges, and are,
consequently, more jealous of infringement and alterations. They are (as a
general body) older men; they have seen too much done and suffered in their time
to be so fired with the prospect of doing, or moved by the narration of
suffering; they are apt also (forming as they do the controlling check on the
representatives of the entire nation) to consider questions as narrow and
trivial which do not affect the interest of great masses; they are men whose
age, rank, and fortune, make habits of luxury and comfort usual and
indispensable. You cannot get the Peers to sit up till three in the morning
listening to the wrongs of separated mothers, and the recital of the cases from
De Manneville down to Greenhill; they are disturbed at the preposterous
importance set by the women on the society of their infant children, and
doubtful as to the effect of such a claim on the authority of the heads of
families. On the whole, they are rather puzzled and provoked than interested, by
a discussion of this nature, and it is a relief to shift the responsibility,
such as it is; to consider it as a purely technical and legal question; and to
sink back in a cushioned carriage, satisfied that “Abinger’s opinion,” or
“Wynford’s speech,” or “Brougham’s opposition,” will fairly settle what may be
the amount
page: 123 of endurance a woman shall be
legally bound to undergo.

It is not the only instance in which that which is bitterly felt, is lightly
taken; and though I am not arguing with ignorant disrespect, against the obvious
wisdom of being chiefly guided in all deliberation, by the opinions of those
whose opportunities have already made them most familiar with the subject under
discussion; I deprecate the notion that this Infant Custody Bill is
to be considered purely as a technical and legal question. How it
is to be framed, how guarded, how enforced, is a portion of the argument
naturally left to the decision of the “Law Lords;” but the decision whether
there shall be any such measure, is for the entire body of the Peers; for it is
not a question of law, but of common judgment and common feeling. If, on the one
hand, the Bill was opposed by an Ex‐Chancellor, it was also
introduced by an Ex‐Chancellor, and one of the most
distinguished men among the Conservative party; if the eloquence of Lord
Brougham was exerted against it, the eloquence of Lord Lyndhurst
was exerted in its favour: if Sir E. Sugden considered the measure unwise and
impracticable, Lord Denman, Sir W. Follett, and many others of equal eminence,
considered that it was just and useful. It received the cautious and deliberate
support of your Lordship; the present holder of the great seal; and the addition
of your opinion, that such a measure might be put into force without disturbing
the practice of the courts. It was a matter on which legal
page: 124 opinion was divided, and which therefore
remained open to free discussion on its general merits, and requiring only, I am
convinced, that general attention should be drawn to it, to ensure a measure
whose provisions might satisfy all parties; based on humanity and
discretion, and guarded by legal knowledge.

I hope to hear Lord Lyndhurst’s eloquence once more exerted on this subject in
the House of Lords, and exerted successfully. If there are no ‘Law‐Lords’ in the
House of Commons, there is at least legal authority; and I will never believe
that the different social position of men, will so utterly change their relative
opinions on a subject which simply addresses itself to clear judgment and good
feeling; that some measure of the nature of that which was passed
with so great a majority in the one House, will not be framed and carried
through the other. I hope that under your Lordship’s Chancellorship, and by your
Lordship’s support, the law may be brought to do justice to those, whose
sufferings are not the less intense, because they are borne in helplessness, and
comparative obscurity.

I am, my Lord, with much respect, Your Lordship’s most obedient servant,